Crim v. State

43 Ala. 53

• Court: Supreme Court of Alabama
• Decided: January 15, 1869
• Status: Published

Opinion

PETERS, J.

This is an appeal from Eranklin circuit court. At the fall term of the circuit court of Eranklin county, in this State, in the year 1868, the defendants in the court below, the said Orim and two others, were indicted for arson. The case was tried on the 22d day of December, of the same year, before the judge of the fourth judicial circuit, when the said defendants were convicted on verdict, and condemned to imprisonment in the penitentiary for seven years, each. Upon the trial, it appears from a bill of exceptions, which is made a part of the record, that the defendants are freedmen, and that upon the trial, the defendants, Steel and Allen, offered to introduce themselves and their wives as witnesses on their behalf, and Orim, himself, on his behalf. This was objected to, and the objection was sustained by the court.

That part of the section of the Code which regulated this question is in the following words: “and whenever a freedman, free negro or'mulatto is a witness against a white person, or a white person is a witness against a freedman, free negro or mulatto, the parties are competent witnesses and may testify in open court, and are not disqualified by any interest in the question or suit, or by marriage.” — Revised Code, § 4231.

This statute is one enlarging the rule of the common law in favor of the parties to a suit, where a freedman is a party, and-where a white man may be a witness against him. Certainly this is a suit in which a white man may be a witness against a freedman, free negro or mulatto. This brings the proceeding in this case within the statute. The court, therefore, erred in refusing permission to the wives of the defendants to testify in their favor; and also in refusing to permit the defendants to testify in their own behalf. The statute is in favor of truth and liberty, and is entitled to receive a liberal construction.

The charge and conviction being for a felony, the judgment is erroneous in failing to show that the defendants were asked, by the court, if they had anything to offer why judgment should not be awarded against them.—Revised Code, §§ 3541, 3697, 3698, 3699; 2 Bl. Com. 375, Sharswood’s; Saffold v. The People, 1 Parker C. C. R. 474, 477; The People v. Stewart, 4 Cal. 218, 226; Dyson v. The State, 26 Miss. 362; 1 Bish. Cr. Proc. § 865, p. 609.

As the question of the abolition and re-establishment of Colbert county does not seem to be clearly presented by the record, no opinion is expressed upon it.

The judgment of the circuit court is erroneous, and is therefore reversed, and the cause remanded for a new trial. The defendants will be held in custody until discharged by due course of law.