Wheat v. State
| Decision Date | 11 June 1896 |
| Citation | 20 So. 449,110 Ala. 68 |
| Parties | WHEAT v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Washington county; William S. Anderson, Judge.
Emanuel Wheat was convicted of a crime, and appeals. Reversed.
The appellant was indicted, tried, and convicted for selling farm products between sunset and sunrise, in violation of section 4141 of the Criminal Code. The only question presented on the present appeal was the admission of secondary evidence of the testimony of one Scott, who was examined as a witness on the former trial of the defendant. It was shown by the state that said witness had testified on the former trial of this defendant on the same charge, in the county court (from a conviction in which court the cause was appealed to the circuit court), that an attachment had been issued for said Scott, but that the sheriff had been unable to find him. There was evidence tending to show that Scott had been seen in Washington county since the former trial of the cause; but his father testified that he had been away from home for more than a year, and that he did not know where he was. On this preliminary evidence, the court admitted the testimony of the witness as to what said Scott had testified on the former trial, and to this ruling the defendant duly excepted.
John R. & Chas. W. Tompkins, for appellant.
Wm. C. Fitts, Atty. Gen., for the State.
The only question in this case is whether a sufficient predicate was laid in the circuit court for the admission of the testimony of one Scott given on a former trial, before the county court, in behalf of the state, on the ground that he was dead or permanently or indefinitely out of the state at the time of the trial in the circuit court. No effort to prove his death was made, and the evidence offered as to his absence went only to show that he was not in Washington county. This was wholly insufficient. Burton v. State (Ala.) 18 So. 240. The court therefore erred in receiving evidence as to the testimony of this witness on the former trial. Reversed and remanded.
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