Wigginton v. State

• Court: Alabama Court of Appeals
• Writing for the Court: SAMFORD, J. PER CURIAM.
• Citation: Wigginton v. State, 87 So. 698, 17 Ala.App. 651 (Ala. App. 1920)
• Decision Date: 29 June 1920
• Docket Number: 8 Div. 759
• Parties: WIGGINTON v. STATE.

87 So. 698

17 Ala.App. 651

WIGGINTON v. STATE.

8 Div. 759

Court of Appeals of Alabama

June 29, 1920

Rehearing Denied Jan. 21, 1921

Appeal from Circuit Court, Limestone County; Robt. C. Brickell Judge.

Van Wigginton was indicted on a charge of murder in the second degree, and on his trial was convicted of manslaughter in the first degree. From the judgment, he appeals. Reversed and remanded.

W.R. Walker, of Athens, for appellant.

J.Q Smith, Atty. Gen., and Callahan & Harris, of Decatur, for the State.

SAMFORD J.

One of the principal points presented by the record and insisted on in brief of counsel was the introduction by the state of the testimony given by a witness on the preliminary hearing of the case against the defendant before the committing magistrate. During the taking of the testimony, on the preliminary question before the judge as to the predicate necessary to the introduction of secondary evidence as to the testimony of this witness, many objections were made to questions asked, and motions made to exclude the answers. These objections and motions were overruled. The questions seeking, as they did, to elicit testimony tending to show that the witness was a nonresident of the state, that his stay in the state was temporary, and that he was at the time of trial beyond the jurisdiction of the state, were not patently illegal or irrelevant, and, the objections being general, and the grounds not being specified, the exceptions will not be considered error. Circuit Court Rule 33; Carter v. State, 16 Ala.App. 184, 76 So. 468. The witnesses on the question of the predicate having testified, first Puryear, that he was sheriff of the county and was at the last term of court; that he knew Frank Graham, who was a witness examined on the preliminary trial of this defendant; that he was present and so was defendant; that he had a subpoena for Graham before the grand jury; that he had a subpoena for him at the last term of court as a witness in this case, but he did not find him; that he did not live in the county; that before the preliminary trial Graham said he lived in Tennessee; that the preliminary trial was in May or June, 1919. The deputy solicitor testified that he was present at the preliminary trial; that Graham was examined as a witness; that he was sworn and examined; that Graham testified he lived in Tennessee; that Graham said he was working for Mr. Leney; that Graham was getting out some telegraph poles in the county down on the river.

The state then asked this question: "Now state to the jury what he testified to on that trial." The defendant objected, assigning three grounds: (1) Because the proper predicate had not been laid for secondary evidence; (2) because the proper predicate had not been laid by the state by which it is authorized to introduce the testimony of a witness on the preliminary hearing; (3) because there is not sufficient proof of the nonresidence of the witness to authorize the introduction of his evidence given on the preliminary hearing of the defendant. The first two of these grounds are general, not specifying the grounds, and therefore the court's action in overruling them will not be considered error. Circuit Court Rule 33. There are several material facts necessary to prove in the laying of a complete predicate for the introduction of secondary evidence in this case; a failure in either one rendering the predicate defective and ineffective. Among these are that the testimony was given under oath by the said witness on a former hearing; that such testimony was given before a competent tribunal land with jurisdiction, etc.; that the witness is inaccessible for one of the statutory reasons; that the witness who proposes to testify remembers the substance of the testimony he is called upon to detail; and perhaps others. A general objection specifies none of these, and since the adoption of circuit court rule 33 the decisions of the Supreme Court and of this court are uniform to the effect that, where the evidence is not manifestly illegal and irrelevant and apparently incapable of being rendered admissible in connection with other evidence, a general objection cannot be sustained. Bufford v. Little, 159 Ala. 300, 48 So. 697; Adams Hdwe. Co. v. Wimbish, 201 Ala. 547, 78 So. 901. The first two grounds of objection being general in their nature, and the third ground specific, the latter objection waives the other grounds not specified. Cooper v. Slaughter, 175 Ala. 211, 57 So. 477.

The third ground of objection, "because there is not sufficient proof of the non-residence of said witness to authorize the introduction of his evidence given on the preliminary hearing of the defendant," raises but one question, and that is that the nonresidence or absence from the state of the witness Graham had not been sufficiently shown. Every reasonable presumption is indulged in favor of the finding of the trial court on a question of this kind. Hardaman v. State, 16 Ala.App. 408, 78 So. 324; Harwell v. State, 12 Ala.App. 265, 68 So. 500. And while the burden is on the state to lay a proper predicate it will be presumed on appeal that this was done, unless it affirmatively appears from the record to the contrary. Price v. State, 117 Ala. 113, 23...