Pope v. State
| Decision Date | 30 June 1913 |
| Citation | 183 Ala. 61,63 So. 71 |
| Parties | POPE v. STATE. |
| Court | Alabama Supreme Court |
Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.
Ervin Pope was convicted of a crime, and he appeals. Reversed and remanded.
See also, 61 So. 263.
Thomas J. Harris, of Anniston, for appellant.
R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.
The law of this case on all questions of any consequence, with one exception which will be specially noticed, has been thoroughly threshed out on former appeals, and settled to our satisfaction. Pope v. State, 174 Ala. 63, 57 So 245; Id., 168 Ala. 33, 53 So. 292. On the last trial the court below followed the previous rulings of this court, and this appeal does not require that anything more be said as to them.
At the trial now under review the defendant "offered to prove by T.C. Sensabaugh the testimony of John Body sworn to at the first trial of this case, the testimony offered being as follows," and here follows in the bill of exceptions a statement of the proposed testimony. The objection interposed to this testimony of the absent witness by the state's solicitor was that "it was not properly predicated, that it was not shown that Body was dead or had removed from the state." The court sustained this objection, and the defendant duly excepted.
It must be conceded that evidence of what a witness has sworn on a former trial, where there was opportunity for cross-examination, should be received, when it appears that the personal attendance of the witness is unobtainable though it cannot be shown affirmatively that the absent witness is either dead, insane, or beyond the jurisdiction of the court. If, for example, it be shown that the whereabouts of the witness is unknown after diligent search, the reason of the rule for this exceptional sort of evidence, which is to avoid a failure of justice (Marler v. State, 67 Ala. 55, 42 Am.Rep. 95) obtains and holds good in such a case. There are precedents to the contrary in some other states; but the better and more general opinion is that inability to find a witness is a sufficient reason for his nonproduction. 1 Greenl.Ev. (16th Ed.) § 163g, p. 284. This court in a number of cases has expressed its favor to the admissibility of secondary evidence in such circumstances, and it may now be said to be well settled in this state. Lowe v. State, 86 Ala. 52, 5 So. 435; Thompson v. State, 106 Ala. 74, 17 So. 512; Burton v. State, 107 Ala. 68, 18 So. 240; Mitchell v. State, 114 Ala. 1, 22 So. 71; Burton v. State, 115 Ala. 1, 22 So. 585; Lett v. State, 124 Ala. 64, 27 So. 256; Percy v. State, 125 Ala. 52, 27 So. 844. But, testimony of this character being admitted from necessity and by way of exception to the general rule of the law, the party offering it assumes the burden of showing to the court that he has exercised due diligence to find the witness.
The objection taken in the court below called attention to one defect only in the predicate laid, to wit: That the proof of Body's death or absence from the state was insufficient, whereas defendant's effort was to show that the witness could not be found, whether dead or alive, whether within or without the state. The question whether the witness could not be found after due diligence was preliminary to the introduction of the proposed testimony, and in the court below was addressed to the judgment of the presiding judge. Here the question is whether, after making proper allowance for the finding below, it sufficiently appears that the whereabouts of Body was unknown, and his testimony at first hand unobtainable by due diligence. If so, he was dead for the purposes of evidence, and secondary proof of his testimony should have been received.
The case presented to the trial court was as follows: It appeared that the absent witness, Body, had lived in Calhoun county for nine or ten years at least. McClurkin was killed in the road immediately in front of the house where the witness lived. There were circumstances which pointed right strongly to his participation in the crime. The defendant had contended all along that Body alone was the guilty agent, and when this case was last here we said on rehearing and after great deliberation: "We have reconsidered the whole evidence with a special view to its tendencies with respect to the possible responsibility of Body for the crime charged against defendant, and, in the light of...
To continue reading
Request your trial
-
State v. Budge
...by reason of illness, insanity, or even a temporary absence from the state. Vaughan v. State, 58 Ark. 353, 370, 24 S. W. 885; Pope v. State, 183 Ala. 61, 63 So. 71; Lowe v. State, 86 Ala. 52, 5 So. 435; Rogers v. State, 136 Ark. 161, 172, 206 S. W. 152; Putnal v. State, 56 Fla. 86, 94, 47 S......
-
State v. Harp
... ... State at the time of the second trial. Perry v ... State, 87 Ala. 30; Knight v. State, 103 Ala ... 48; Burton v. State, 115 Ala. 1; Pate v ... State, 158 Ala. 1; Francis v. State, 188 Ala ... 39; South v. State, 86 Ala. 617; Pope v ... State, 183 Ala. 61; Jacobi v. State, 133 Ala ... 1; Matthews v. State, 96 Ala. 62; Vaughan v ... State, 58 Ark. 353; Poe v. State, 95 Ark. 172; ... Eyer v. State, 112 Ark. 37; Rogers v ... State, 136 Ark. 161; People v. Devine, 46 Cal ... 45; Young v. People, 54 Colo. 293; Henwood ... ...
-
Dannelly v. State
...before the confession is admitted. Lockett v. State, 218 Ala. 40, 117 So. 457; Cook v. State, 16 Ala.App. 390, 78 So. 306; Pope v. State, 183 Ala. 61, 63 So. 71; Jackson v. State, 83 Ala. 76, 3 So. 'If such countervailing evidence is not offered until after the preliminary question of the a......
-
Lokos v. State
...before the confession is admitted. Lockett v. State, 218 Ala. 40, 117 So. 457; Cook v. State, 16 Ala.App. 390, 78 So. 306; Pope v. State, 183 Ala. 61, 63 So. 71; Jackson v. State, 83 Ala. 76, 3 So. 847. If such countervailing evidence is not offered until after the preliminary question of t......