Percy v. State
| Decision Date | 10 April 1900 |
| Parties | PERCY v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Madison county; H. C. Speake, Judge.
James Percy was convicted of larceny, and appeals. Reversed.
David A. Grayson and John H. Wallace, for appellant.
Chas G. Brown, Atty. Gen., for the State.
It has been frequently held by us, that if a witness who has been examined in a criminal case before a tribunal of competent jurisdiction, is not subsequently, after diligent search 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 formerly gave. Burton v State, 115 Ala. 1, 22 So. 585; Mitchell v. State, 114 Ala. 1, 22 So. 71; Lett v. State (Ala.) 27 So. 256; Matthews v. State, 96 Ala. 62, 11 So. 203.
It was objected by the defendant, that the testimony of Arthur Forsythe and Ed. White, witnesses for the prosecution, taken before the committing magistrate in this case, was not admissible on this trial, on the ground that the defendant on that examination had waived a preliminary hearing, and the evidence he then gave was illegal, incompetent and hearsay. We know of no statute which authorizes a defendant, when brought before a committing magistrate, on a warrant of arrest on a charge of felony, to waive an examination and thereby preclude an examination into the evidence by the magistrate. Section 5233 of the Code provides, "that the magistrate before whom the person is brought, charged with a public offense, must as soon as may be examine the complainant and the witnesses for the prosecution on oath, in the presence of the defendant; and after the testimony for the prosecution is heard, the witnesses for the defendant must be sworn and examined;" and section 5235, directs that the evidence of the witnesses examined must be reduced to writing by the magistrate, or under his direction, and signed by the witnesses respectively. In a misdemeanor case it is provided, when the warrant is executed by the sheriff or his deputy, such sheriff or deputy may, on request of defendant, discharge him on sufficient bail for his appearance at the next term of the court having jurisdiction of the offense, to answer an indictment therefor, if found, etc.; but, if the warrant is not executed by the sheriff or his deputy, at the defendant's request, he may be carried before any magistrate of the county, who may, without examination, and acting on the presumption that the offense is of an aggravated nature, discharge him on his giving sufficient bail for his appearance before the court having cognizance of the offense. Id.§§ 5224-5226. It often occurs in arrests for felonies, that defendants appear before the committing magistrate and waive examination, and are bound over to answer indictments; but, when this is done, although the state may lose the advantage of...
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Yarber v. State
... ... " 'Opportunity to exercise the right of cross examination, and not the actual exercise of the right, is sufficient. One's failure to exercise the right does not furnish grounds to exclude the former testimony. Long v. Davis, 18 Ala. 801; Percy ... Page 1330 ... v. State, 125 Ala. 52, 27 So. 844; Wigmore, supra.' ... "Appellant had the opportunity to cross-examine the witness at the first trial and he cannot now complain because of his failure to do so." ... And in Bridges v. State, 26 Ala.App. 1, ... ...
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Hines v. Miniard
... ... Reversed and remanded ... Anderson, ... C.J., and Gardner, J., dissenting in part ... [94 So. 303] ... Percy, ... Benners & Burr, of Birmingham, for appellant ... Black & ... Harris, of Birmingham, for appellee ... THOMAS, ... 636, ... had "removed to Texas"; without other showing this ... was treated, prima facie, a permanent absence; Harris v ... State, 73 Ala. 495, 497, subp na had issued for witness, ... and returned "not found," and, her absence from the ... state not being shown, her ... ...
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Benton v. State
... ... subsequent trial." The same principle is well stated in ... the opinions in the following additional cases, to wit: ... Lucas v. State, 96 Ala. 51, 11 So. 216; Jacobi ... v. State, 133 Ala. 1, 32 So. 158, certiorari denied 187 ... U.S. 133, 23 S.Ct. 48, 47 L.Ed. 106; Percy v. State, ... 125 Ala. 52, 27 So. 844; Sims v. State, 139 Ala. 74, ... 36 So. 138, 101 Am.St. Rep. 17; Burton v. State, 107 ... Ala. 68, 18 So. 240; Woodward v. State, 21 Ala.App ... 417, 109 So. 119, 120 ... As ... Presiding Judge Bricken expressed it for this court in ... ...
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Allen v. State
...This is often done to make the State lose the advantage of perpetuating the testimony in its pristine vividness. See Percy v. State, 125 Ala. 52, 27 So. 844. Moreover, the bringing in of the indictments were the acts which led to Allen's trial and convictions. All accusations theretofore ma......