Burton v. State

• Decision Date: 25 July 1895
• Citation: 18 So. 240,107 Ala. 68
• Parties: BURTON v. STATE.
• Court: Alabama Supreme Court

18 So. 240

107 Ala. 68

BURTON v. STATE.

Supreme Court of Alabama

July 25, 1895

Appeal from city court of Talladega; John W. Bishop, Judge.

William Burton was convicted of larceny, and appeals. Affirmed.

The facts were as follows: Paul J. Collier left Birmingham, on the Georgia Pacific Railroad, on Saturday afternoon, December 22, 1894. The defendant, Bob Smith, and Jim Ball left Birmingham on the same train. Collier had his valise with him in the car with the three negroes. The three negroes got off the train at Pell City, in St. Clair county, and took the Birmingham & Atlantic train for Talladega. Collier missed his valise at Pell City. He came over to Talladega the next day and on Monday morning, December 24th, at the preliminary trial of defendant, identified his valise and its contents worth about $50. Defendant was arrested in Talladega county near Ironaton, late Saturday night. He told John Hammocks, a negro, sleeping in same house with him, just before the officer took him away, that, if any one called for a valise to tell them that it was out in the woods, in a stump. On the next day the valise, identified by Collier as his property, was found in Talladega county, near defendant's house, in a stump, covered with leaves. When defendant left Birmingham he had only one valise,-a black oilcloth one. On the train, the same night, between Pell City and Talladega, he had two valises, one of which he said was his father-in-law's. The defendant made confession of his guilt right after preliminary trial, and said he did not think he should suffer alone. On his final trial, the defendant denied all connection with stealing the valise, and denied making any statement about the valise to John Hammocks, or making any confessions after the preliminary trial. The facts further showed that said Collier was a nonresident of Alabama; that he lived in Georgia, and traveled in Arkansas and Mississippi; that he had never been seen in Talladega before nor after the preliminary trial of defendant; that he reached Talladega Sunday afternoon, and left the next day on the 12 o'clock train; that he gave his address to the marshal just before leaving on the train; that a subp na was issued for him on the 15th April, three days before the day of the trial of the case; that search was made for him, and the subp na returned by sheriff unexecuted. The defendant separately excepted to the court's overruling his objection to the introduction in evidence of secondary evidence of what the witness Collier testified on the preliminary examination of the defendant, and also the admission in evidence of the confession made by the defendant. It is unnecessary to set out at greater length any other facts of the case, for these two questions present the only rulings of the trial court which are reviewed on the present appeal.

C. C. Whitson, for appellant.

Wm. C. Fitts, Atty. Gen., and Alex. M. Garber, for the State.

McCLELLAN J.

A prominent question in this case is whether a predicate for the admission of testimony of an absent witness, given for the state on...