Jones v. State

• Citation: 57 So. 36,174 Ala. 85
• Parties: JONES v. STATE.
• Decision Date: 29 June 1911
• Court: Supreme Court of Alabama

57 So. 36

174 Ala. 85

JONES v. STATE.

Supreme Court of Alabama

June 29, 1911

Rehearing Denied Dec. 21, 1911.

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Will Jones was convicted of murder in the second degree, and he appeals. Affirmed.

The facts as to the admission of the stenographer's notes as to Will Harvey's testimony sufficiently appear in the opinion. The witness J. E. King was permitted to testify that he is constable of Massey beat, and lived in that section and had charge of the prisoner, Will Jones, after the coroner's verdict. "I had a conversation with him and did not offer him a reward or threaten him in any way, or offer any inducement to get him to talk to me and tell anything. As we were going over that morning, he said that if he killed old man Ranse, nobody did not see him, and couldn't prove it, or something like that. Then, after we got there, he said, if they punished him for it, they would punish an innocent man. As we went on to Falkville, he asked me if I had ever heard of a white man being hurt for killing an old negro." And in answer to the question, if he made any statement after that, and what it was, he said, "It was not much harm to kill a negro anyway," and that was about all. Thomas R. Shipp was shown to be sheriff of said county, and his statements as to the statements made by the defendant are similar to those testified to by King, and the preliminary proof is practically the same. It is further shown by this witness that the defendant had escaped from jail and fled; that this occurred about three weeks ago. The court excluded the answer of the sheriff as to how he knew he broke jail, in which he said that he was gone, and the other prisoners in jail said that he broke out. The other exceptions to evidence sufficiently appear from the opinion.

The following charges were refused to the defendant: "(A) The presence or absence of a motive in the commission of an offense is always a legitimate subject of inquiry. It is of more importance and deserving of more consideration when the identification of the accused as a criminal agent depends upon circumstantial evidence. (B) Gentlemen of the jury, I charge you at the request of the defendant that you may look to the fact, if it be a fact, together with all the other facts and circumstances in the case, that the defendant and the deceased, Ranse Wilhite, were shown to be friendly to each other, in determining whether defendant had any motive to murder him."

P. M Brindley, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

SIMPSON J.

The appellant was convicted of the crime of murder in the second degree.

The state offered to introduce a typewritten copy of the testimony of Will Harvey, deceased, given at a former trial of this case, and taken down by a stenographer. The stenographer was sworn as a witness and identified the testimony as that taken down by her at the former trial, stating that she was not sworn at the time she took it down. The defendant objected to the introduction of the evidence, on the grounds that the stenographer was not under oath, at the time of taking down the evidence, at the former trial, and because the testimony was not signed by the witness. The objections were overruled, and the testimony, including the direct examination and cross-examination, was admitted.

It is the settled law of this state that the testimony of a witness at a former trial, since deceased, though not signed by him, may be introduced; and this court has said, "It was competent to introduce any witness who heard his statements." Roberts v. State, 68 Ala. 515, 525; Lowe v. State, 86 Ala. 47, 51, 5 So. 435; Jeffries v. Castleman, 75 Ala. 262, 264; Marler v. State, 67 Ala. 55, 61, 42 Am. Rep. 95.

This court has held that such evidence is admissible even when the previous testimony was not reduced to writing, provided the witness can state the substance of all the testimony of said witness at the previous trial. Davis v. State, 17 Ala. 354, 356, et seq.; Harris v. State, 73 Ala. 495, 497; Thompson v. State, 106 Ala. 67, 74, 75, 17 So. 512; Degg v. State, 150 Ala. 3, 43 So. 484.

This case is differentiated from the cases in other states, cited by appellant, in that, in the present case, the stenographer, who took down the testimony in the former case, was sworn as a witness in this case, and identified the typewritten copy as the testimony taken down by her in the previous trial, which is certainly more satisfactory than the testimony of a witness, merely from his memory, as to what was testified in the previous trial.

The notes made by stenographers have been admitted, where the stenographer had no independent recollection of the testimony, and the reasoning of the courts is sound. State of Iowa v. Smith, 99 Iowa, 26, 68 N.W. 428, 61 Am. St. Rep. 219; Wright v....