Blanks v. State
| Decision Date | 26 May 1942 |
| Docket Number | 6 Div. 899. |
| Citation | 30 Ala.App. 519,8 So.2d 450 |
| Parties | BLANKS v. STATE. |
| Court | Alabama Court of Appeals |
Wm. Conway and Frederick V. Wells, both of Birmingham, for appellant.
Thos S. Lawson, Atty. Gen., and John J. Haynes, Asst. Atty. Gen for the State.
The defendant appeals from a conviction in the Circuit Court of robbery.
The injured party, M. G. Smith, testified for the State at the preliminary trial, but was dead at the time of the trial in the Circuit Court, so the State proved, at this later trial what he had testified on the preliminary trial.
The method of eliciting this former testimony was as follows: A bystander at the preliminary trial, who heard Smith testify there, was permitted to testify in the Circuit Court the substance of Smith's testimony.
This was the only evidence to establish the corpus delicti.
." Thompson v. State, 106 Ala. 67, 74, 17 So. 512, 514; Floyd v. State, 82 Ala. 16, 2 So. 683; Bone v. State, 13 Ala.App. 5, 68 So. 702.
It was upon this theory that the evidence was admitted but the appellant contends that the form in which the testimony of the deceased witness was presented offended the "best evidence rule", and was improper and erroneous.
In our recent case of Jones v. State, 6 So.2d 26, opinion by our Presiding Judge, the principle was reaffirmed that testimony concerning what a witness heard testified to at the preliminary hearing was not the "best evidence" and was inadmissible without showing that the testimony at preliminary hearing was not reduced to writing or that it had been lost and could not be found.
The rationale for the rule is that the law requires that the evidence of the witnesses, examined on preliminary hearing, be reduced to writing by the magistrate, or under his direction, and signed by the witnesses respectively. Code 1940, Title 15, § 135.
It is presumed, in the absence of proof to the contrary, that the committing magistrate has done his duty by complying with this statute; and parol proof of what a deceased witness swore on such examination is inadmissible until this presumption is rebutted or the absence of the written evidence otherwise accounted for. Of such import are the following cases: Jones v. State, Ala.App., 6 So.2d 26; Davis v. State, 168 Ala. 53, 52 So. 939; Sanford v. State, 143 Ala. 78, 39 So. 370; Matthews v. State, 96 Ala. 62, 11 So. 203; Harris v. State, 73 Ala. 495; Davis v. State, 17 Ala. 415.
But in this case it sufficiently appears that the testimony of the witness Smith, on preliminary, was not reduced to writing, thereby rendering parol evidence thereof admissible. This showing was made by the admission of the defendant's counsel in open court to this effect, in the following language: "This man (defendant) didn't have counsel up there at all, (at the preliminary), and the testimony was not taken down." The fact that the testimony was not reduced to writing seems to have been uncontroverted but admitted by counsel for both parties. So, to place the trial court in error for failing to require proof of this uncontroverted fact would be unwarranted. We see no injury done the defendant on this score. The testimony of the deceased witness Smith was properly proven.
The authority, of course, of defendant's counsel to make such an admission in the course of the trial, as binding upon his client, cannot be questioned. Starke v. Kenan, 11 Ala. 818; Rosenbaum v. State, 33 Ala. 354; McWilliams v. Martin, 237 Ala. 624, 188 So. 677; Coster v. State, 16 Ala.App. 191, 76 So. 475; Sinclair v. State, 161 Miss. 142, 132 So. 581, 74 A.L.R. 241; 31 C.J.S., Evidence, § 361a and b, pp. 1135-1137.
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Green v. State
...v. State, 82 Ala. 16, 2 So. 683; Pruitt v. State, 92 Ala. 41, 9 So. 406; Thompson v. State, 106 Ala. 67, 17 So. 512; Blanks v. State, 30 Ala.App. 519, 8 So.2d 450; Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837; McElroy, The Law of Evidence in Alabama, pp. The defendant was not denied the ri......
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State v. Ortego, 29374.
...its admission does not contravene the constitutional rights of the accused. Smith v. United States, 4 Cir., 106 F.2d 726; Blanks v. State, 30 Ala.App. 519, 8 So.2d 450; People v. Hanna, 36 Cal.App.2d 333, 97 P.2d Sukle v. People, 109 Colo. 363, 125 P.2d 151; Burns v. State, 191 Ga. 60, 11 S......
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Cowart v. State
...85 Ala. 326, 5 So. 300; Matthews v. State, 96 Ala. 62, 11 So. 203; Thompson v. State, 106 Ala. 67, 17 So. 512. See also Blanks v. State, 30 Ala.App. 519, 8 So.2d 450. II. Over defense objection, an inculpatory statement of Cowart came into evidence without the State first proving that it wa......
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Elkins v. State
...Ala. 53, 52 So. 939; Roberson v. State, 21 Ala.App. 196, 106 So. 696; Jones v. State, 30 Ala.App. 360, 6 So.2d 26, and Blanks v. State, 30 Ala.App. 519, 8 So.2d 450. The statement is in the nature of an inculpatory (Tillison v. State, 248 Ala. 199, 27 So.2d 43), but the principle is the sam......