DuBose v. State

115 Ala. 70

Opinion

McCLELLAN, J.

The fact that the person liberated was lawfully confined was an essential ingredient of the offense charged against the defendant. The best evidence of this fact was the warrant of arrest under which the arrest was made and the defendant therein was held at the time of the escape. This warrant or a certified copy of it should have been put in evidence, or the failure to do so should have been fully accounted for before admitting secondary evidence of the issuance of the warrant. The court against defendant’s objection allowed the justice of the peace to testify that he issued the warrant, etc., etc., without any predicate for this secondary evidence being laid. This was clearly error.

There is no merit in the other exceptions reserved.

Reversed and remanded.