Lucas v. State

• Citation: 96 Ala. 51,11 So. 216
• Parties: LUCAS v. STATE.
• Decision Date: 26 May 1892
• Court: Supreme Court of Alabama

11 So. 216

96 Ala. 51

LUCAS v. STATE.

Supreme Court of Alabama

May 26, 1892

Appeal from criminal court, Jefferson county; S.E. GREENE, Judge.

Jim Lucas was indicted for stealing two watches of the value of $25 each from a railroad car, and convicted. He appeals. Reversed.

The evidence introduced for the state tended to show that the defendant was guilty of the charge for which he was indicted and tried. The defendant requested the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) If the jury believe the evidence they will find the defendant not guilty of grand larceny. (2) If the jury believe the evidence they will find the defendant not guilty. (3) If the jury believe from the evidence that the defendant stole from a railroad car not used for carrying freight or passengers, and that the property stolen was of the value of less than twenty-five dollars, then the jury cannot convict the defendant of grand larceny."

Wm. L. Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was indicted for burglary of a railroad car, and in the second count for larceny from a railroad car. He was convicted on the second count. At a preliminary examination of the defendant Dock Tilly was examined as a witness by the state, and his testimony was reduced to writing. On the trial, after the indictment, Dock Tilly was absent, and against the objections of the defendant, his testimony given on the preliminary examination was admitted against him. The rule in such cases is that if a witness dies, or becomes insane, or has gone beyond the jurisdiction of the state permanently, or for such an indefinite time that his return is merely contingent or conjectural, the testimony of such witness may be proven on a subsequent trial. Pruitt v State, (Ala.) 9 South. Rep. 406; 1 Greenl. Ev. (14th Ed.) § 163, and notes; Lowe v. State, 86 Ala. 52, 5 South. Rep. 435; South v. State, 86 Ala. 617, 6 South. Rep. 52; Perry v. State, 87 Ala. 30, 6 South Rep. 425. The predicate for the introduction of the testimony of Dock Tilly, the absent witness, did not comply with the rule as here declared, and was insufficient. The preliminary proof simply shows "that several months ago said Tilly was seen at work in Atlanta, Ga., where witness himself was at work, and had not been seen since, did not know where Tilly was, nor where his home was, nor how long he worked in Atlanta. He had...