Redd v. State

• Decision Date: 09 July 1898
• Citation: 47 S.W. 119
• Parties: REDD et al. v. STATE.
• Court: Arkansas Supreme Court

47 S.W. 119

REDD et al. v. STATE.

Supreme Court of Arkansas.

July 9, 1898.

Appeal from circuit court, Drew county; Marcus S. Hawkins, Judge.

James Redd and Alex. Johnson were convicted of murder, and appeal. Reversed.

H. King White and J. W. House, for appellants. E. B. Kinsworthy, Atty. Gen., for the State.

WOOD, J.

This appeal is from a conviction of murder in the first degree.

1. One of the grounds of the motion for new trial is as follows: "Because the court erred in permitting the prosecution to read to the jury, as evidence in the case, the testimony of John Henry, given at a former trial of this case; the same being irrelevant, incompetent, and no proper foundation having been laid for the introduction of same." Witness H. W. Wells read from the bill of exceptions prepared for the first appeal what counsel on both sides agree was the testimony of John Henry. In the midst of this testimony, as set forth in said bill of exceptions, occurs this recital, in parenthesis: "At this point attorneys for defense objected to the witness testifying, whereupon the pardon was produced, restoring him to citizenship; so the witness was permitted to testify, and proceeded as follows," etc. "The defendant at the time objected to the testimony of the said John Henry being read to the jury, on the ground that no proper foundation had been laid therefor, and because the said Henry had been convicted of a felony, and it was not shown that he had ever been pardoned."

(1) Without setting it out in detail, it suffices to state that the testimony of Henry tended to connect the defendants with the crime charged, and was therefore relevant.

(2) The state showed that since the first trial John Henry had moved to Mississippi; also, that he had been killed; and therefore the proper foundation was laid for the introduction of his testimony taken at a former trial.

(3) Was it competent? The defendants proved that on the 1st of October, 1892, John Henry was sentenced to the penitentiary for the crime of grand larceny. The rule is well settled that the testimony of a witness taken at a former trial, since deceased, "is open to all the objections which might be taken if the witness were personally present." Railway Co. v. Harper, 50 Ark. 159, 6 S. W. 720; 1 Greenl. Ev. § 163. If witness Henry had been present at the trial, and the defendants had objected to his testimony, showing that he had been rendered incompetent to testify by reason of conviction of an infamous crime, it would then have devolved upon the state to show that his competency had been restored by the pardon of such offense, before said witness could testify. Under the rule supra, the testimony of the witness at the former trial stands in lieu of the witness himself, and precisely the same proof should be made as to the competency of this evidence as should be made if the witness were present in person to testify. What is the effect of the recital in the bill of exceptions in the former trial, which was read in evidence on this trial as a part of the testimony of John Henry, to wit: "(At this point the attorney for the defendants objected to the witness testifying, whereupon the pardon was produced, restoring him to citizenship.)" It is argued in the able brief of the attorney general that this recital shows that John Henry was a competent witness at the time he testified at the first trial, and therefore his evidence was competent on the second trial, unless it had been shown by the defendants that he had been rendered incompetent since his evidence was taken at the first trial. We do not consider this position tenable, for several reasons:

(a) This was a mere parenthetical recital in the bill of exceptions, in the midst of what purported to be, and what counsel agreed was, the testimony of John Henry; but the facts set forth in this recital were no part of John Henry's testimony, and the facts which this recital disclose were not agreed to by counsel, and could not be proved by reading from the bill of exceptions in the former trial. Stern v. People, 102 Ill. 555; Roth v. Smith, 54 Ill. 432.

(b) If these facts could be established that way, the effect would only be to show that John Henry was held competent to testify at the former trial, which is proved as well without the recital, by the fact in evidence that he did testify.

(c) What was ruled as to the competency of the witness John Henry at the first trial is not res adjudicata on the second trial. The reversal and remand of the first case for new trial sent the whole case back to be tried de novo. The defendants on the second trial could raise anew any objection to the competency of John Henry as a witness that they raised on the first trial, and every objection which could have been raised. For instance, if they had overlooked any fact at the first trial, which, if known, would have rendered his testimony incompetent, they had the right to bring forward such fact on the second trial, in order to have his testimony taken on the first trial declared incompetent.

(d) This brings us back to the rule announced in the beginning, that "the party against whom the testimony of a deceased witness in a former trial is offered is allowed to make every objection which could be made if the witness were in life, and personally offered for the first time." House v. Camp, 32 Ala. 541. The record in regard to the proof of pardon is as follows: "H. W. Wells, prosecuting attorney, testified: Question. State whether you know John Henry was pardoned before he testified, and by whom? Answer. Yes, sir; he was pardoned. (The defendants objected to this question and answer, and asked that it be excluded from the consideration of the jury. The court overruled their objection, and the defendants excepted.) Question. What became of that pardon? Answer. I obtained the pardon, and made profert of it in the case when John Henry was being examined before the court; and after the court was over I gave the pardon to John Henry, and I have never seen it since." The best evidence of a pardon, under our law, is either the original or a certified copy. Section 2880, Sand. & H. Dig., provides: "Copies of official acts of the governor and * * * of all records deposited in the office of the secretary of state and required by law there to be kept, certified under his hand and seal of office, shall be received in the same manner and with like effect as the original." Section 3166, Sand. & H. Dig., is as follows: "The secretary of state shall keep a full and accurate record of all the official acts and proceedings of the governor." Section 3168 provides: "He shall keep a seal of office, surrounded with the words `Seal of the Secretary of State, Arkansas,' and shall make out and deliver to any parties requiring same, copies of any * * * commissions or other official acts of the governor, and of all rolls, records, etc., deposited in his office and required there to be kept, and certify said copies under his hand, and affix the seal of his office thereto." It is an old, familiar, and wise rule of law that oral evidence cannot be substituted for any instrument which the law requires to be in writing, so long as the writing exists, and is in the power of the party. 1 Greenl. Ev. § 86; Whart. Ev. § 63. Here the nature of the fact to be proved, to wit, a pardon, disclosed the existence of some evidence of that fact in writing, of an official character, more satisfactory than oral proof; and therefore the production of such evidence, or a showing why it could not be produced, was demanded, before any oral evidence of the fact could be admitted. 1 Greenl. Ev. § 85, and authorities cited in note d. The rule, so far as we know, is without exception, and the authorities uniformly so declare it. Brown v. State (Tex. Cr. App.) 28 S. W. 536; Hunnicutt v. State, 18 Tex. App. 499-520; Underh. Cr. Ev. § 208. The wisdom of such a rule is clearly demonstrated in this case by the general and indefinite manner in which it was attempted to prove the pardon by oral evidence; the witness simply stating that he obtained a pardon for John Henry, and that John Henry was pardoned, leaving to inference that the pardon was for the specific offense of which said Henry had been convicted. Mr. Wharton says: "When it is sought to rehabilitate a convict by means of a pardon, the pardon must accurately cite the conviction." Whart. Cr. Pl. § 535. If it be conceded that the original was lost, still it was not shown to have been beyond the power of the state to produce a certified copy of the pardon. As appellants showed that John Henry, if present, was incompetent to testify, and the state has offered no evidence, such as the law requires, to controvert that fact, it follows that the court erred in permitting the testimony of such witness taken at a former trial to be read to the jury; and, as such evidence was prejudicial, the error in admitting it entitled appellants to a new trial.

2. Was it error to admit the testimony of witness James Robinson? He claimed to have been an eyewitness to the alleged murder of W. F. Skipper. This witness was shown to have been convicted of the crime of burglary and grand and petit larceny. No less than three pardons were produced for him when he was first offered, and two others when he was re-examined. After Robinson had first testified, appellants moved to exclude his testimony, for incompetency growing out of the conviction of petit larceny, of which they alleged he had never been pardoned. The state then produced the third or last pardon, which is as follows: "Whereas, James Robinson, of Drew county, Arkansas, has been duly convicted in a certain court or courts of this state of certain offenses, including those of burglary and larceny: Now, therefore, I, Dan'l W. Jones, governor of Arkansas, by virtue of the power and authority in me vested by the constitution of this state, do hereby grant unto the said James Robinson full and free...