Mitchell v. State

• Decision Date: 19 May 1897
• Citation: 22 So. 71,114 Ala. 1
• Parties: MITCHELL v. STATE.
• Court: Alabama Supreme Court

22 So. 71

114 Ala. 1

MITCHELL v. STATE.

Supreme Court of Alabama

May 19, 1897

Appeal from city court of Mobile; O. J. Semmes, Judge.

Joe Mitchell was convicted of larceny, and appeals. Reversed.

The appellant, Joe Mitchell, was indicted, tried, and convicted of larceny of money from a dwelling. The opinion of the court sufficiently sets forth the facts relating to the rulings of the trial court which are reviewed on this appeal. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury that a conviction may rest upon the circumstantial evidence of guilt alone, but in such case the facts and circumstances must be such as are absolutely incompatible, upon any reasonable hypothesis, with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the accused." (2) "The court charges the jury that guilt must be proved in this case by facts and circumstances, all of which are consistent with each other and with the guilt of the accused, and absolutely inconsistent with any reasonable theory of innocence."

Chas L. Bromberg, Jr., for appellant.

Wm. C Fitts, Atty. Gen., for the State.

BRICKELL C.J.

1. The first question presented is the rejection of evidence proposed to be introduced by the defendant, having, as is insisted in argument, a tendency to show that Maggie Pickens a witness for the defendant who had been examined on the trial before a committing magistrate, was not within the state, and her personal presence could not be compelled. The purpose of the evidence was to lay a predicate for the introduction of evidence of the testimony given by the witness on the preliminary trial. Connected with this question is the sufficiency of the evidence which was introduced to authorize the introduction of evidence of the former testimony. The deputy of the sheriff, having for execution the subp na for the witnesses in the case, had returned "Not found" the subp na for the absent witness. On his examination as a witness for the defendant, he stated that he had hunted for the witness, and she was not to be found in the county, but he did not know that she had gone without the state. The inquiry was then made of him by the defendant whether there was any report in the neighborhood as to her whereabouts, coupling the inquiry with the statement that he expected to show a general report, in the neighborhood in which the witness lived, that she had gone out of the state; and it is the rejection of this evidence which is supposed to constitute error. It is a settled rule in this court that if a witness, who has been examined in a criminal case before a tribunal of competent jurisdiction, subsequently dies, or, if not dead, becomes insane, or, after diligent search, is not found within the jurisdiction of the court, or if that which is equivalent be shown,-that he has left the state permanently, or for such an indefinite time that his return is contingent and uncertain,-it is admissible to prove the substance of the testimony he gave formerly. 1 Brick. Dig. p. 878, §§ 1064-1072; 3 Brick. Dig. p. 441, §§ 523-533; Lowe v. State, 86 Ala. 47, 5 So. 435; South v. State, 86 Ala. 617, 6 So. 52; Perry v. State, 87 Ala. 30, 6 So. 425; Pruitt v. State, 92 Ala. 41, 9 So. 406; Lucas v. State, 96 Ala. 51, 11 So. 216; Lowery v. State, 98 Ala. 45, 13 So. 498; Thompson v. State, 106 Ala. 67, 17 So. 512; Burton v. State, 107 Ala. 68, 18 So. 240. The rule is exceptional, and is founded on a principle of necessity rather than upon ideas of mere convenience. To dispense with the primary evidence, and to substitute for it secondary evidence, the existence of some one of the contingencies which create the necessity must be satisfactorily shown. While the declaration of the absent witness, if she had made any, on leaving her home, as to her intention, as to where she was going, and as to her return or the duration of her absence, it may be, would have been admissible evidence, the general report or rumor in the neighborhood as to her whereabouts, or where she had gone, or her purposes, was mere hearsay,-not admissible evidence. Bank v. Seawell, 18 Ala. 616; Griffin v. Wall, 32 Ala. 149. The witness was a known resident of the county, and the mere fact that, after diligent search, she was not found at her usual place of residence, or in the county, shows no more than a present disappearance, consistent with the hypothesis that it was merely temporary, and that she was elsewhere in the state, subject to the process and jurisdiction of the court. Harris v. State, 73 Ala. 495; 1 Whart. Ev. § 178. There was no error in the rulings of the court below in the rejection of the evidence proposed to be introduced by the defendant.

2. The prosecutor, in his testimony in chief, stated that he had the money, the subject of the alleged larceny, in a purse, or pocketbook (as it seems indifferently termed in the bill of exceptions), which was put in evidence by the state, and which the prosecutor stated cost him 30 cents. There was evidence tending to show that the pursue belonged to the defendant, and that he had it prior to the...