Hulsey v. State, 8 Div. 184

• Decision Date: 17 April 1979
• Docket Number: 8 Div. 184
• Parties: Bobby Joe HULSEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 913

369 So.2d 913

Bobby Joe HULSEY v. STATE.

8 Div. 184.

Court of Criminal Appeals of Alabama.

April 17, 1979.

C. B. Caine, Jr., Moulton, for appellant.

Charles A. Graddick, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State.

CLARK, Retired Circuit Judge.

By one count of an indictment defendant-appellant was charged with grand larceny and in another count with buying, receiving, concealing or aiding in concealing personal property, described in each count as "one (1) John Deere four (4) row planter, of the value of Twenty-five ($25.00) Dollars or more," the property of "Carson Implement Company, Inc., a corporation." A jury found him guilty as charged in the indictment, and the court sentenced him to imprisonment for five years.

About a month before his conviction, defendant had been tried on the same indictment, but the jury was unable to reach a verdict thereon, and a mistrial was declared and the case was ordered to be placed on the active trial docket.

We find it necessary to reverse the judgment by reason of the admission in evidence, over the objection of the defendant, of the testimony in the first trial of an important witness for the State. The basis for the admission is shown by a colloquy in the record among counsel for the respective parties and the court, partly as follows:

"THE COURT: Call your next witness.

"MR. LITTRELL: Judge, our next witness would be Jackie Burch. He is at the present time in Auburn in School. I spoke with him last night, but he has a Chemistry Exam today and he said that it was not possible for him to attend Court today. Of course by the time I talked with him the Jury had already been struck and put in the box. I explained that matter to him and he said that he had talked with his professor, and his professor told him that there was no way that there were 250 people taking the exam and that there was no way that they could work around it, so he just said that it was impossible for him to be here, and I told him so I had his testimony from the last trial, at which was finally declared a mistrial transcribed by Mr. Eaves, the Court Reporter, and certified by him.

"THE COURT: Well, I think under the circumstances, since Mr. Burch is unavailable, and that he is at some distance and that the State has made a bona fide and good faith effort to get him here, that this testimony that he gave in the trial before is pertinent and proper I am going to allow the State to read his testimony into the record in this case, and Ladies and Gentlemen you will consider it as though Mr. Burch is here and is giving his testimony.

"THE COURT: This evidence is perfectly permissible and legal in any court within the State of Alabama or the United States. All right, proceed.

"MR. CAINE: We except."

To the contention of appellant that the above action constitutes reversible error, appellee responds by referring to the evidence admitted as "the deposition of a non-party witness" and cites Dunahoo v. Brooks, 272 Ala. 87, 128 So.2d 485 (1961); State v. Long, Ala., 344 So.2d 754 (1977); Ala. Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975); and Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837 (1950).

The first three cases cited by appellee were civil cases. In the first of the cases cited, the deposition of an adverse party was involved. In each of the next two cases cited, in admitting the pre-trial deposition of a witness who was over one hundred miles from the place of trial, the court was relying upon Ala.Rules of Civil Procedure 32(a)(3)(B), which expressly permits the reception in evidence of the deposition if the witness is at a greater distance than one hundred miles from the place of trial, unless the absence of the witness was procured by the party offering the deposition. Nothing further needs to be said as to the inappositeness of the first three authorities cited by appellee, other than to comment that appellee would be, and the trial court in its ruling would have been, clearly correct if the cases being tried had been a civil case and the testimony offered had been a pre-trial deposition.

Wyatt v. State, supra, does not support appellee's position. It indicates, if it does not hold, that the basis for admitting the former testimony of the witness in this case was insufficient. At 46 So.2d 843, it is stated:

"The testimony of a witness at a former trial is admissible in a second trial when at the time the witness is dead, under disability, is permanently absent from the state, or becomes unavailable by reason of claim of privilege at the second trial. Mims v. Sturdevant, 36 Ala. 636; Jeffries v. Castleman, 75 Ala. 262; McCoy v. State, 221 Ala. 466, 129 So. 21. . . . "

There are a few bases for admitting the testimony of a witness at a former trial other than those stated above in Wyatt, but none of them expressly or impliedly includes the reason given in this case for the non-production of the witness. A comprehensive consideration of the matter and a collection of the pertinent authorities are found in Gamble, McElroy's Alabama Evidence, § 245.07(8)(1977).

Although the above conclusion is sufficient to require a reversal, we should also note that a serious question was presented on the trial as to whether there was a fatal variance between the evidence as to the property stolen and the description of the property in the indictment. There is ample evidence to show that parts of a "John Deere four (4) row planter" were stolen. The reference in the...