Lowe v. State

• Decision Date: 31 January 1889
• Citation: 5 So. 435,86 Ala. 47
• Parties: LOWE v. STATE.
• Court: Alabama Supreme Court

5 So. 435

86 Ala. 47

LOWE v. STATE.

Supreme Court of Alabama

January 31, 1889

Appeal from circuit court, Montgomery county; THOMAS M. ARRINGTON Judge.

Defendant and 10 or 12 others were arrested at his house by police officers, who found them engaged in playing "craps." One of the officers testified, over objection, that, while the prisoners were being carried to the guard-house, walking in couples, one of them, Frank Lake stated that each of the players paid defendant 25 cents for the privilege of playing at the game in his house; that this remark was made in an ordinary tone; that defendant could not have been more than five or six feet in the rear at the time and that he made no reply. Afterwards defendant, testifying in his own behalf, stated that he did not hear the remark of Lake, and denied that the players paid him anything for the use of his room; and he moved to exclude the testimony. The day after his arrest defendant was charged in the recorder's court of the city of Montgomery with a violation of section 600 of the City Code, (which declares a fine of not more than $100 against any person "who keeps a gaming saloon, or house for gaming, or who keeps or has in his possession any table, cloth, box, or other device used for the purpose of gaming,") and was found guilty, and fined. The recorder, acting ex officio as justice of the peace, also bound him over to answer any indictment that might be preferred against him "for the offense of keeping a gaming table." Defendant appeals.

J. G. Winter, for appellant.

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

SOMERVILLE J.

The defendant is charged with the offense of keeping or exhibiting a gaming table for gaming, contrary to the provisions of the statute. It was proposed by the state to introduce secondary evidence of what had been sworn to by one Jake Munter, an absent witness, who had testified in a former prosecution pending against the defendant, before the recorder of the city of Montgomery, for violation of a municipal ordinance prohibiting the keeping of a gaming saloon, or house for gaming, or table, or other device used for gaming. The evidence, in our opinion, clearly proves that Munter, the absent witness, had gone, about two weeks previously, to the state of Kansas, or to Washington territory, being thus out of the state of Alabama at the time of the trial, and beyond the jurisdiction and process of the state courts. We are satisfied, further, that his absence was for an indefinite period, if it was not presumptively permanent.

The recorder, being clothed by statute with not only jurisdiction of violations of the city ordinances, but also with "all the powers and authority that belong to justices of the peace in criminal matters, by the laws of this state," he was invested with the full jurisdiction of a justice as a committing magistrate. Acts 1880-81, p. 496, § 2. The act of keeping a gaming table being a violation of both the municipal and state law, the recorder may be regarded, not only as sitting as judge of the municipal court, and investigating the alleged violation of the city ordinance, but also, incidentally, as a committing magistrate, with power to bind the defendant over to answer for the same offense in the state courts. The procedure, therefore, before the recorder's court, and the present prosecution, are for substantially, if not identically, the same offense, and, if there be no other valid objection to the testimony of Munter than the fact of its rendition before the recorder, we must hold it admissible. Harris v. State, 73 Ala. 495. Whart. Crim. Ev. (8th Ed.) § 227.

The main objection urged to the admissibility of this witness' testimony is that, this being a criminal prosecution, the defendant generally has the right to be confronted by the witnesses, and secondary evidence of what an absent witness swore to on a former prosecution is not admissible, unless it is clearly proved that he had permanently removed from the state. Where the witness is deceased, the authorities hold, in uniform accord, that his testimony upon a second trial is admissible.

In Horton v. tate, 53 Ala. 488, such testimony, taken before a committing magistrate, was admitted on trial of the same cause in the circuit court, the witness being satisfactorily proved to be dead; following a like ruling in Davis v. State, 17 Ala. 354. The basis of the rule is the necessity of the case, to prevent the defeat of justice; the constitutional objection being obviated by the fact that the defendant has already had the opportunity to confront and cross-examine the witness in the prior procedure involving the same issue. Marler's Case, 67 Ala. 55; Summons v. State, 5 Ohio St. 324.

In Marler v. State, 67 Ala. 55, on a trial for a felony, the testimony given on the former trial by a witness who had since become insane, was allowed to be introduced in evidence; the necessity and reason of the case being regarded the same as if he were dead. The authorities are fully reviewed in that decision, and the true reason upon which they are based, stated to be the necessity of preventing the miscarriage of justice, applies with equal force to a witness who is shown to be absent from the state for an indefinite time, so that he cannot be reached by the process of the court at the time of the trial. We can see no difference between the two cases in principle, nor in the reasons alleged, why the rule should not be applied as well to criminal as to civil cases. It is possible, it is true, that the absent witness may return at some day in the future, just as it is possible that an insane man may be restored to his reason, but the courts cannot be expected to delay the administration of justice waiting for the happening of so indefinite a contingency. Mr. Greenleaf says that such testimony may be received "if the witness, though not dead, is out of the jurisdiction, or cannot be...