Thompson v. State

• Decision Date: 11 April 1895
• Citation: Thompson v. State, 106 Ala. 67, 17 So. 512 (Ala. 1895)
• Parties: THOMPSON ET AL. v. STATE.
• Court: Alabama Supreme Court

17 So. 512

106 Ala. 67

THOMPSON ET AL. v. STATE.

Supreme Court of Alabama

April 11, 1895

Appeal from circuit court, Henry county; John R. Tyson, Judge.

Robert Thompson and another were jointly indicted for a conspiracy to rob, were convicted, and appeal.Reversed.

The two counts of the indictment are copied in the opinion.The state elected to prosecute for the offense charged in the first count of the indictment.To this count of the indictment the defendants demurred upon the following grounds: (1) Because it fails to allege the character of the money of which the defendants conspired to rob Hudspeth, and that the money had any value; (2) that no intent was alleged, nor was the same alleged to have been unlawfully done; (3) that the indictment was defective as a common-law indictment, and fails to conform to the statutory form, in charging the offense of conspiracy to rob.This demurrer was overruled, and the defendants duly excepted.One Dykes, a witness for the state was absent.Said Dykes had been examined on the preliminary trial of the defendants, and the state offered to prove by the justice of the peace before whom the preliminary trial was had what the said Dykes testified to on said trial.The evidence introduced by the state showing the absence of the witness Dykes is sufficiently stated in the opinion.The defendants objected to the justice of the peace testifying to what the witness Dykes had testified to on the preliminary trial, on the grounds that said Dykes had not been shown to be beyond the jurisdiction of the court, and that the defendants had a right to be confronted by the witnesses against them.The court overruled this motion, and the defendants duly excepted.The substance of this testimony of the witness Dykes upon the preliminary hearing, as testified to by the justice of the peace, tended to show that the defendants, together with the said Dykes, conspired in Henry county, Ala., to go to the house of Hudspeth, who lived in Georgia, for the purpose of robbing him, and that in compliance with such conspiracy they did go to said house but for certain reasons the robbery was not committed, and that Dykes told of this conspiracy to certain other persons.The testimony of the persons to whom Dykes told this conspiracy tended to corroborate the testimony of Dykes.There was also other evidence introduced on the trial tending to show that the defendants were guilty of the conspiracy as charged in the indictment.The testimony of W. M. Espy, J. R Baker, Lonetta Smith, Frank Smith, Mrs. P. A. Thompson, and Mrs. Satcher, witnesses for the defendants, tended to establish an alibi as to each of the defendants, by showing that, at the time and place at which Dykes testified the defendants were when the conspiracy was entered into, the said defendants were elsewhere; the testimony of each of the witnesses specifying the particular places at which the defendants were, respectively.Upon the introduction of all the evidence, the court, in its general charge to the jury instructed them, among other things, as follows: "A doubt, to acquit defendants, or either of them, must be a reasonable doubt,-not mere speculation or possibility.The state is not required to prove defendants' guilt beyond all doubt, but beyond all reasonable doubt."The defendant duly excepted to this portion of the court's general charge, and also separately excepted to the court's refusal to give each of the following charges requested by them: (1)"If the jury believe the testimony of W. M. Espy and J. R. Baker as to the whereabouts of the defendantNapoleon Thompson at the time of the alleged offense, they will find the defendants not guilty as charged."(2)"The time and place of the alleged offense is a material inquiry in this case, after the alibi is set up."(3)"If there was an agreement entered into by and between Hudspeth, Maund, Holland, and Deal to have the defendants to come to Hudspeth's house on the night that it is said they went, and it was the purpose of Hudspeth and these parties to entrap these defendants, then there could not be a robbery, and hence the defendants in this case could not be convicted."(4)"The jury should consider the testimony of Bob Dykes with extreme caution, coming to them, as it does, by witnesses who can't remember all his testimony.That the same is not in writing, and the recollection of the witnesses indistinct as to a great deal of his testimony."(5)"This offense is charged to have been committed in Henry county, near the railroad, on the east side of town, on the Monday or Tuesday evening of the week of the defendants' arrest.The burden is on the state, and they must convince you of this fact to a moral certainty, or you should acquit."(6)"If the jury believe from the evidence that the defendants have sustained their plea of alibi at the time of the alleged offense, then they cannot be guilty, and the jury should acquit.And in determining this question they should look at the testimony of W. M. Espy, J. R. Baker, Lonetta Smith, Frank Smith, Mrs. P. A. Thompson, and Mrs. Satcher."(7)"If the jury can account for defendants' going to Hudspeth's house, or for the agreement under which they went, on any other reasonable hypothesis, other than the guilt of the defendants, or consistent with their innocence, it is the duty of the jury to do so, and acquit the defendants."(8)"If the state lay the place and time of the conspiracy at or near the railroad on the east side of town, and on Monday or Tuesday evening, between one and two o'clock, of the same week of the alleged going to Hudspeth's house, then the state must prove it by evidence, sufficient to satisfy the jury beyond all reasonable doubt, or the jury should acquit."(9)"Before the jury can convict, they must believe the testimony of Robert Dykes, that they entered into the conspiracy, as alleged, on Monday or Tuesday evening, and at the time as elected by the state."(10)"If the jury believe the evidence, they will find the defendants not guilty."

R. H. Walker, for appellants.

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

BRICKELL C.J.

The indictment contains two counts, the first charging that the defendants"conspired together to unlawfully take one thousand dollars in money the property of Julius C. Hudspeth, from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same."The second count charged that the defendants"unlawfully conspired together to unlawfully, and with malice aforethought, kill Julius C. Hudspeth."On the trial the state voluntarily elected to prosecute only for the offense charged in the first count, thereby, for all the purposes of the trial, eliminating the second count as effectually as if it had not formed part of the indictment; and it is the sufficiency of the first count, alone, which is now open for consideration.The offense, the commission of which is averred to have been the purpose of the conspiracy is described in the count in the words of an indictment for robbery, as prescribed by the Code (Cr. Code, p. 276, form 76); and in other respects the count is in close analogy to the form prescribed for a conspiracy to murder (Id. p. 269, form 29).The statute prescribing forms of indictment declares that the forms are sufficient in all cases to which they are applicable, and that in other cases analogous forms may be used.Id.§ 4899.The demurrers to the count were not well taken, and were properly overruled.3 Brick. Dig. pp. 279, 280, §§ 447-449.

It is a very general rule, applicable alike in civil and criminal cases, that if a witness has given testimony, in the course of a judicial proceeding between the parties litigant, before a competent tribunal, and subsequently dies; or, if not dead becomes insane; or, after diligent search, is not to be 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 Whart. Ev. §§ 177-180;1 Greenl. Ev. §§ 163-166;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.The rule is founded upon a principle of necessity, rather than upon any ideas of mere convenience.Parties should not lose the benefit of evidence taken on a former trial, when the same issues were involved, and there was full opportunity of examination and cross-examination, because events or contingencies have arisen which render the personal presence of the witness impossible, or, if possible, his examination impracticable, or because the witness is without the jurisdiction of the court, and his personal presence cannot be compelled.The rule is, however, exceptional, and it is essential to the admissibility of the evidence that some one of the contingencies which are deemed to create the necessity be satisfactorily shown.In the present case the fact which was supposed to authorize the introduction of the evidence given by the witness on the preliminary examination before the justice of the peace was his absence from the state at the time of the trial.The evidence was, without conflict, that the witness was a minor, and his home was with his father, in the county in which the trial was had, and that when he left home, but a short...