Harwell v. State

• Decision Date: 11 February 1915
• Docket Number: 190
• Citation: 12 Ala.App. 265,68 So. 500
• Parties: HARWELL v. STATE.
• Court: Alabama Court of Appeals

68 So. 500

12 Ala.App. 265

HARWELL v. STATE.

No. 190

Court of Appeals of Alabama

February 11, 1915

Rehearing Denied April 6, 1915

Appeal from City Court of Montgomery; Armstead Brown, Judge.

James L. Harwell was convicted of violating the prohibition law and he appeals. Reversed and remanded.

See also, 11 Ala.App. 188, 65 So. 702.

The facts sufficiently appear from the opinion. The following charges were refused to defendant:

(1) If, after weighing and considering all the evidence in the case, one or more of the jurors feel that he desires more evidence before he or they can never get an abiding conviction of the guilt of defendant, then the juror has a reasonable doubt of defendant's guilt, and the jury could not convict defendant. (2) Affirmative charge. (3) The keeping of prohibited liquors in one's residence is not prima facie evidence that they were kept for sale.

William R. Brassell, J.R. Thomas, and J. Lamar Wiley, all of Montgomery, for appellant.

William L. Martin, Atty. Gen., and W.T Seibels, of Montgomery, for the State.

BROWN J.

The point most strenuously urged by the appellant for the reversal of the judgment of the trial court is that the evidence offered by the state as a predicate for the introduction of the testimony of the witnesses Louis Stanford and George Molton, given on a former trial of the case, was not sufficient to justify the conclusion reached by the trial court that the whereabouts of these witnesses was unknown and their testimony unobtainable by due diligence.

In a recent decision our Supreme Court, in the case of Pope v. State, where that court reversed the judgment of the trial court for refusing to admit the testimony of a witness given on a former trial, stated the rule thus:

"It must be conceded that evidence of what a witness has sworn on a former trial, where there was opportunity for cross-examination, should be received, when it appears that the personal attendance of the witness is unobtainable, though it cannot be shown affirmatively that the absent witness is either dead, insane, or beyond the jurisdiction of the court. If, for example, it be shown that the whereabouts of the witness is unknown after diligent search, the reason of the rule for this exceptional sort of evidence, which is to avoid a fai1ure of justice Marler v. State, 67 Ala. 55, 42 Am.Rep. 95), obtains and holds good in such a case. There are precedents to the contrary in some other states; but the better and more general opinion is that inability to find a witness is a sufficient reason for his nonproduction (1 Greenleaf on Evidence [16th Ed.] § 163g, p. 284). *** The objection taken in the court below called attention to one defect only in the predicate laid, to wit: That the proof of Body's death or absence from the state was insufficient; whereas defendant's effort was to show that the witness could not be found, whether dead or alive, whether within or without the state. The question whether the witness could not be found after due diligence, was preliminary to the introduction of the proposed testimony, and in the court below was addressed to the judgment of the presiding judge. Here the question is whether, after making proper allowance for the finding below, it sufficiently appears that the whereabouts of Body was unknown, and his testimony at first hand unobtainable by due diligence. If so, he was dead for the purposes of evidence, and secondary proof of his testimony should have been received." Pope v. State, 183 Ala. 61, 63 So. 71, 72.

In other words, the trial court having held that the predicate was sufficient to justify the admission of the testimony in this case, every reasonable presumption must be indulged in favor of that ruling; and, unless the evidence, when considered in connection with the presumption of correctness accorded to the ruling of the trial court, does not show that by the exercise of proper diligence these witnesses could have been found, and their personal attendance obtained, this court would not be justified in putting the trial court in error for admitting this testimony.

The case presented to the trial court showed that a subpoena had regularly issued for all of the state's witnesses, including the witnesses Stanford and Molton, on the 24th day of July, 1914; that the subpoena regularly reached the hands of the sheriff on the 25th of July, and was returned executed on all of the witnesses except Stanford, Molton, and one other on the 2d day of August, 1914. The return of the sheriff, which was signed by him, stated that said witnesses "could not be found in my county." This return carried with it a presumption of law that the sheriff had discharged his official duty, and had made diligent search in Montgomery county for the witnesses shown by the return to have been "not found." Jones on Evidence §§ 45, 46; Roman v. Lentz, 177 Ala. 70, 58 So. 438. In addition to this, it is shown that the witness Stanford was under an indictment for murder, and that the sheriff had a capias for his arrest; that the sheriff had offered a reward for the apprehension of Stanford; and that he had not been located. The evidence further tended to show that Stanford was reared in Montgomery county, and that his parents still resided in the county, and it does not appear from the evidence that he had any permanent residence at any other place. There is also evidence tending to show that search was made for these witnesses by the sheriff and his deputies, and that they were not able to find them. As to the witness Molton, it was shown that he lived in Montgomery county part of the time, but that at one time he was found in Autauga county, and the witness on the former trial testified that he lived in "Boguehomme," a suburb of the city of Montgomery, and the testimony shows that the subpoena was not sent to Autauga county, and that no search or inquiry was made for the witness in Boguehomme. We are not able to say that the evidence offered was not sufficient to justify the court in reaching the conclusion that the whereabouts of the witness Stanford was unknown, and that his evidence at first hand was unobtainable by due diligence. Pope v. State, supra. But, as to the witness Molton, the predicate was not sufficient, and the court erred in admitting his testimony given on the former trial. Wheat v. State, 110 Ala. 68, 20 So. 449; Burton v. State, 107 Ala. 68, 18 So. 240.

On the first trial of the case the witness Stanford was examined as a witness in behalf of the state, testifying to the purchase by him of some whisky from the defendant. Upon the cross-examination of this witness he stated that he had bought this whisky from defendant under instructions from one McCord, who was also examined as a witness in behalf of the state; McCord testifying that he was officially connected with the excise commission of Montgomery, and that it was his business to run down "blind tigers." On cross-examination as to the nature of the employment of Stanford by McCord, Stanford stated that he was not paid specially for buying whisky from the defendant, and was asked this question: "What is he to pay you for it?" The trial court sustained an objection to this question, and on appeal to this court from a judgment of conviction that judgment was reversed for this ruling of the trial court, this court saying:

"We are of opinion that the question was one which the court should have allowed to be answered. On the cross-examination of the witness the defendant was entitled to bring out any fact having a tendency to impeach his impartiality. It is not to be denied that the jury, in determining whether or not the witness was under the influence of a bias that might affect the weight to be accorded to his testimony, should have been permitted to look, not only to the fact that he had been employed to obtain incriminating evidence against the defendant, but to the amount of compensation he expected to receive for the service rendered by him in that regard." Harwell v. State, 11 Ala.App. 188, 65 So. 702.

The cross-examination of this witness in all other respects on the first trial appears to have been full and complete.

When the official stenographic report of the testimony of the witness Stanford given on the first trial, showing the ruling of the court above adverted to adverse to the defendant, was offered in evidence, the defendant objected on the ground that he had not had full opportunity to cross-examine the witness, being denied the right to have the question above set forth answered, and that for this reason the stenographic report of the testimony of this witness should not be received against him. Before the testimony of the witness given on the former trial is admissible, it must appear that the witness has been cross-examined or a full opportunity afforded for cross-examination by the party against whom the testimony is offered (Pruitt v. State, 92 Ala. 43, 9 So. 406); and, if it did not appear from the record in this case that the testimony called for by the question propounded to the witness Stanford on cross-examination as to what McCord paid him for his services was fully developed by other evidence in the case, the admission of the testimony of the witness would clearly be error for which the judgment of...