Carden v. State

• Decision Date: 26 July 1888
• Citation: 4 So. 823,84 Ala. 417
• Parties: CARDEN v. STATE.
• Court: Alabama Supreme Court

4 So. 823

84 Ala. 417

CARDEN v. STATE.

Supreme Court of Alabama

July 26, 1888

Appeal from circuit court, Russell county; J. M. CARMICHAEL, Judge.

Indictment for murder. On a preliminary trial of one Elbert Cooper for this same murder, Will Sanders, a witness for the state in this trial, had been examined, and his testimony taken down by the magistrate and signed by the witness, as required by Code Ala. 1886, § 4286. The defendant attempted to discredit this witness by showing discrepancies between his testimony as then taken down and as given on this trial, by reading to him detached portions of his former testimony, and asking him if he did not so testify. This the court refused to permit and the defendant excepted. The other facts sufficiently appear in the opinion.

L W. Martin and John V. Smith, for appellant.

T N. McClellan, Atty. Gen., for the State.

SOMERVILLE J.

The appellant was indicted for the murder of Reuben Sanders, jointly with one Joe Carden, who was acquitted on the trial. The only questions raised for consideration are alleged errors in the rulings of the court, as shown by the bill of exceptions.

1. The evidence tends to show that the appellant entered the house of the deceased, through the aperture in the chimney, and killed him by striking him with an iron crow-bar. To prove motive for the killing, in connection with sundry threats previously made, the state introduced in evidence an indictment found by the grand jury of Russel county, against both of the defendants, for breaking and entering the house of the deceased with intent to steal. The name of the deceased was written on this indictment as one of the only two witnesses for the state, and there was evidence tending to show a threat on the part of the appellant against deceased in reference to the charge of stealing certain money from him involved in this pending indictment, and also a like threat for having appeared as a witness before the grand jury in connection with the finding of this indictment. Under these circumstances, the indictment itself was clearly admissible in evidence to prove a motive on appellant's part for the killing, namely, the removing of a material witness in the burglary prosecution against him. It tended also to show malice against the deceased as the supposed prosecutor. The circuit court did not err in admitting this evidence. Marler v. State, 67 Ala. 55, 68 Ala. 580; Childs v. State, 55 Ala. 25.

2. It was not competent, however, for the state to enter into an investigation as to the guilt or innocence of the defendant of the charge of burglary or larceny involved in that indictment. The merits of that prosecution could not be entered into on this trial. If it could be, there would virtually be a trial of two separate felonies charged against the same defendant, progressing simultaneously on their merits, and on distinct indictments; for, if the state were permitted to prove the guilt of the defendant under the burglary indictment, it would be competent for the defendant to rebut this evidence by proof of the contrary, showing his innocence. This would, in every essential, be a trial for another felony other than murder, which is alone involved in the indictment under which the defendant is charged in the present case. This would not only multiply issues indefinitely, as any number of similar collateral indictments might be injected into a pending prosecution; but it would operate greatly to prejudice defendants so as to render a perfectly fair trial of them, in many instances impracticable, if not quite impossible. Commander v. State, 60 Ala. 1; Marler's Case, supra; Stewart v. State, 78 Ala. 436; McAnally v. State, 74 Ala. 9; Garrett v. State, 76 Ala. 18; Whart. Crim Ev. (8th Ed.) § 784; 1 Greenl. Ev. (14th Ed.) § 53, note b. Under this principle, the circuit court, in our judgment, erred in admitting the statement of the witness Delia Cooper as to the defendant's being seen in possession of a large amount of money soon after the commission of the alleged burglarious entry of the house of the deceased, when the evidence tends to...