87 So. 698 | Ala. Ct. App. | 1920
Lead Opinion
The state then asked this question: "Now state to the jury what he testified to on that trial." The defendant objected, assigning three grounds: (1) Because the proper predicate had not been laid for secondary evidence; (2) because the proper predicate had not been laid by the state by which it is authorized to introduce the testimony of a witness on the preliminary hearing; (3) because there is not sufficient proof of the nonresidence of the witness to authorize the introduction of his evidence given on the preliminary hearing of the defendant. The first two of these grounds are general, not specifying the grounds, and therefore the court's action in overruling them will not be considered error. Circuit Court Rule 33. There are several material facts necessary to prove in the laying of a complete predicate for the introduction of secondary evidence in this case; a failure in either one rendering the predicate defective and ineffective. Among these are that the testimony was given under oath by the said witness on a former hearing; that such testimony was given before a competent tribunal and with jurisdiction, etc.; that the witness is inaccessible for one of the statutory reasons; that the witness who proposes to testify remembers the substance of the testimony he is called upon to detail; and perhaps others. A general objection specifies none of these, and since the adoption of circuit court rule 33 the decisions of the Supreme Court and of this court are uniform to the effect that, where the evidence is not manifestly illegal and irrelevant and apparently incapable of being rendered admissible in connection with other evidence, *653
a general objection cannot be sustained. Bufford v. Little,
The third ground of objection, "because there is not sufficient proof of the nonresidence of said witness to authorize the introduction of his evidence given on the preliminary hearing of the defendant," raises but one question, and that is that the nonresidence or absence from the state of the witness Graham had not been sufficiently shown. Every reasonable presumption is indulged in favor of the finding of the trial court on a question of this kind. Hardaman v. State,
Omitting this testimony, the only testimony left is that of the sheriff that he had had two subpœnas for the witness at a former term of the court which he had not executed and the sheriff's conclusion that the witness was not in the county and the testimony of the deputy solicitor that witness was cutting some telegraph poles down on the river. This was not sufficient proof to establish nonresidence or absence from the state. Harwell v. State,
It is earnestly insisted by counsel for the state, in an able brief that, granting the contentions of appellant, this is a case for the application of rule 45 (61 South. ix2), in that the testimony of Graham did not probably injuriously affect substantial rights of the defendant. True, Graham's testimony was only cumulative, but great importance was attached to it by the state on the trial, and to our mind it would be a dangerous construction indeed for the courts to hold that the entire testimony of an eyewitness to a difficulty was necessarily without effect on the jury in the making up of its verdict. Rule 45 was a long step forward in the administration of substantial justice, without unnecessary delay, caused by technical errors having no substantial effect on the result of trials, but the rule will always be applied with caution lest what was intended to promote justice should prove to be a denial of substantial rights. We cannot agree with the contention that rule 45 should be applied in this case.
Charge 30, if not otherwise objectionable, was argumentative, and for that reason was properly refused.
For the error pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
Addendum
The judgment is reversed, and the cause is remanded.
Reversed and remanded. *654