Hussey v. State

• Decision Date: 26 June 1889
• Citation: Hussey v. State, 87 Ala. 121, 6 So. 420 (Ala. 1889)
• Parties: HUSSEY v. STATE.
• Court: Alabama Supreme Court

6 So. 420

87 Ala. 121

HUSSEY v. STATE.

Supreme Court of Alabama

June 26, 1889

Appeal from circuit court, Madison county; H. C. SPEAKE, Judge.

Indictment of William B. Hussey for murder.Conviction of murder in the second degree, and defendant appeals, assigning as error inter alia, the following charge of the court"All men, whether of good or bad character, are liable to punishment, and should receive punishment, when they violate the laws of the land.Proof of good character, then is not permitted to go to the jury for the purpose of shielding the defendant from the consequences of his conduct but simply as a circumstance to be considered by the jury with the evidence in the case; and if, from all the evidence in the case, the jury believe the defendant to be guilty beyond a reasonable doubt, they should say so by their verdict, as firmly against a man of good character as of bad.Good character does not shield a man from the consequences of a criminal act, proved to the satisfaction of a jury beyond a reasonable doubt, though it may raise a reasonable doubt of the act having been done with a criminal intent."

Milton Humes, R. C. Brickell, and R. A. McClellan, for appellant.

W. L. Martin, Atty. Gen., and D. D. Shelby, for the State.

SOMERVILLE J.

The prisoner in this case was tried for the murder of Matt Strong, and, being convicted of murder in the second degree, was sentenced to confinement in the penitentiary for a period of 25 years.The questions presented have been ably and exhaustively argued, both at the bar and in the written briefs of counsel.

1.A careful examination by each of the judges of the application made by the prisoner for a change of venue in this case, including the affidavits both in support of the motion and those offered in opposition to it, has led us unanimously to the conclusion that it was properly overruled.The evidence fails to show to our reasonable satisfaction that an impartial trial and an unbiased verdict could not reasonably be expected, according to the ordinary course of justice, in the county of Madison, where the indictment was found.Regarding the application as having been made in due time, which we need not decide, it will be overruled on the authority of the rule declared in Seams v. State,84 Ala. 410, 4 South. Rep. 521.

2.In determining the merits of this application, we have considered the counter-affidavits offered by the state, to the introduction of which the record shows objection was duly taken in the court below.It is our opinion that the exception based on the admission of these affidavits was properly overruled.The reasons urged in argument against this evidence are twofold: First, it is said to be in violation of section 7, art. 1, of our state constitution, which provides that, "in all criminal prosecutions," the accused shall have the right "to be confronted by the witnesses against him;" and, secondly, that such evidence is ex parte, and of an unreliable nature, the deponents not being subject to cross-examination, and there being no compulsory method of forcing them to swear to affidavits.

The objection urged against the value or weight of such evidence is unquestionably well taken, and is suggestive of admitted elements of weakness in this kind of testimony.It goes, however, to the question of its sufficiency, rather than that of its competency, and it applies to every class of cases where ex parte affidavits are held to be admissible, whether civil or criminal, or in courts of law or equity, which are numerous.It has always been said that this species of evidence is of a very low order, and that it ought to be received with caution, and closely scrutinized, and the propriety of its reception in many instances is for this reason addressed to the sound discretion of the lower court.On principles of necessity and convenience, it has long been received by courts of equity upon applications for the appointment or discharge of receivers, and various other interlocutory motions; by courts of law to grant new trials, enter satisfaction of judgments, obtain attachments, and the like; and in criminal proceedings for leave to file an information, to mitigate or aggravate punishment after convictions of misdemeanor, to discharge from wrongful arrests; and in applications for discharge in habeas corpuscases.The same practice is authorized and has long prevailed in this and other states, in motions made for changes of venue in both criminal and civil cases.From the earliest period of our state's history, ex parte affidavits have been received on the part of both the defendant and the state in applications of this character.The competency of such testimony, whatever may be its value, is well established by uniform practice as well as by authority.1 Bish. Crim. Proc. (3d Ed.) § 72;Seams' Case, supra;Ex parte Chase, 43 Ala. 303;Birdsong's Case, 47 Ala. 68;Edwards' Case, 49 Ala. 334.

The supposed constitutional objection cannot be sustained to such counter-affidavits, when offered by the state.It is only in "criminal prosecutions" that the right of the accused to be confronted by his witnesses is secured.This has reference only to the trial proper, or those proceedings which follow between the commencement of the trial and the verdict of acquittal or conviction.It manifestly has never been supposed to extend to the preliminary proceedings in the grand jury room upon which the indictment is founded or other collateral proceedings.It is akin to the right to be heard by counsel, to demand the nature and cause of the accusation, to have compulsory process for witnesses, to be exempt from giving evidence against one's self, and to have a speedy trial by an impartial jury; and which are guaranties enumerated in the same clause of the constitution, and must be interpreted by the principle of noscitur a sociis.Const. 1875, art. 1, § 7.All these are rights secured during the trial of the defendant, not on the investigation of issues collateral or preliminary to his prosecution.

This construction was long ago placed by the United States supreme court on the analogous clause of the federal constitution, which declares that "in all criminal prosecutions the accused shall enjoy the right *** to be confronted with the witnesses against him."In Ex parte Bollman, 4 Cranch, 75, which was an application for habeas corpus, the question arose whether an ex parte affidavit, made before a magistrate to obtain a warrant of arrest, could be used as evidence on a motion to commit, and whether the accused was not entitled to demand viva voce evidence rendered in his presence.The affidavit was held admissible on the ground that the preliminary investigation, instituted to determine whether the accused should be discharged or held to trial, was not, strictly speaking, "a prosecution," within the meaning of this clause of the constitution.The same question was raised shortly afterwards in the Case of Aaron Burr before the circuit court of the United States at Richmond, which was an application for discharge on habeas corpus.Chief Justice MARSHALL held that an ex parte affidavit was admissible on the same ground stated in the other case, such evidence not being, in a case of that nature, objectionable on constitutional grounds.Burr's Trial, 97.

This view of the constitution has not been seriously questioned since that time in this country; the word "prosecution" being generally conceded to embrace only the trial proper of a criminal cause, and not collateral motions merely incidental to the cause.Hurd, Hab. Corp. pp. 208-220;5 Crim. LawMag.(1884,)p. 798, and cases cited in note 2;1 Bish. Crim. Proc. (3d Ed.)§ 73.The right to change the venue, it may be added, is a statutory, not a constitutional, right of the citizen.It may therefore be given or taken away, ad libitum, by a legislative enactment.This being true, the privilege may be burdened when given by such reasonable conditions as the law-making power may elect to attach to it.Had the general assembly expressly declared that one of the conditions of exercising the right to make such an application should be the admission of affidavits on the part of the state, the condition would be valid, because that to which it is attached is of grace, and not of right.The principle cannot vary because the condition is attached by judicial construction, and not by the express words of the statute.

We adhere to the established practice on this subject, which has uniformly authorized the admission in evidence of counter-affidavits introduced by the state, in answer to the defendants' evidence of like kind in support of his motion for a change of venue.

3.One of the points most earnestly pressed on our attention in this case is the admission of the dying declarations of the deceased, which were made at different times to various witnesses, between the time he received the fatal wound, on Wednesday in the forenoon, and the hour of his death, on the afternoon of the following Saturday.The contention is that no sufficient predicate was laid for the admission of this evidence.

The rules of law on this subject have been too often discussed by this court to justify any additional attempt on our part to restate them at any great length.The difficulty does not lie in the rules themselves, but in the just and proper application of them to the particular facts in each case.The purpose of the court should be to arrive at the state of the declarant's mind when the declarations were made, taking into consideration all that was said by him, and the surrounding circumstances of the case, including the nature of the injury which produced decedent's death, and his probable appreciation of its fatal character.The...