THOMAS, J.
[1]
The petition conforms to the rules governing the same; and petitioner’s brief complies with the recent rule requiring certificate of the fact of service of copy of brief on opposing party. This court has jurisdiction, under section 140 of the Constitution, to superintend and control the Court of Appeals as to the rule of evidence announced by the latter court for the introduction of the letter in question, without due authentication or proof of defendant’s authorship or authorization thereof. The state’s motion is overruled; and we will consider the ruling in question in its relation to the true rule of evidence governing in this jurisdiction. Ex parte L. & N. R. R. Co., 176 Ala. 631, 58 South. 315.
Petitioner was indicted for and convicted
óf a violation of the prohibition laws. The sheriff found a prohibitive quantity of malt liquor in a room which it is contended was in defendant’s possession. The evidence for the state tended to show the burglary of a freight car and the taking therefrom of beer of the quantity and kind found stored in said room. Defendant denied the possession or occupancy of the room and any knowledge or participation in the burglary or taking of the beer from the ear.
[2]
Defendant’s counsel thus concisely states the question for decision:
“Over the objection of the defendant the state was permitted to introduce as evidence in the case a certain note or paper writing, alleged to have been found along with the prohibited liquors. It was not shown that the note was written by the defendant, or at his instance, or that he had anything to do with the placing of the note whore it was found. The note was in' words and figures as follows, to wit (Exhibit B): ‘Prank, please put this in the lounge and make Elvira burn the boxes and go to sleep and don’t talk. B.’ A witness for the state testified that the beer in question was stolen from the depot of the Central of Georgia Railway Company at Girard, Ala., and that the defendant had confessed that he stole the beer from a certain automobile stored in a certain garage. The defendant denied absolutely making the confession; denied all knowledge of the theft; denied possession both of the beer and of the room in which it was found.”
Over the objection of the defendant, timely interposed, that the execution of the above note or paper writing had not been traced to the defendant, and “that it was not shown that the note or paper writing was sent under any authority from the defendant, the state was permitted by the trial court to introduce said note, or paper writing, in evidence against the defendant. The defendant moved to exclude said note, or paper writing from the consideration of the jury upon said grounds, which motion the trial court overruled.”
The opinion of the Court of Appeals contains the announcement that—
' The “defendant’s contention in this connection is without merit, and the cases cited by him are not applicable here, nor do they afford any authority for the question involved. In response to the question by the solicitor to Sheriff Lindsay, who had testified that he made a search of the room of the defendant, ‘Did you find anything there?’ he answered, ‘We found
4Y2
cases of beer with this note on top of it.’ The note was as follows: ‘Prank, please put this beer in the lounge and make Elvira burn the boxes and go to sleep and don’t talk. B.’ It was also shown that there was a lounge in the same room, and that 91 bottles of beer were found inside the lounge. It is not shown that the note was written by the defendant or at his instance, or that he had anything to do with the placing of the note there, other than the evidence to the effect that he had stolen the beer that was recovered. The note which was found on top of the beer was as much admissible as a label on the bottle, or a tag on the boxes. Johnson v. State, 78 South. 716.
in other 'words, it was open to the jury to find that this note was connected with the presence of the beer at this particular place, and was a part of the circumstances surrounding its presence there.”
In the admission of this evidence over defendant’s due objection and exception, the trial court was in error. It is a well-established rule of evidence that where a letter, note, or telegram is received in due course, the same is not admissible as evidence against the author or sender, without proof of handwriting or authority, unless the same is in reply to a communication sent to the sender by the sendee. Rike v. McHugh, 188 Ala. 237, 66 South. 452; C. W. Zimmerman Mfg. Co. v. Dunn, 163 Ala. 272, 277, 50 South. 906; Owensboro Wagon Co. v. Hall, 149 Ala. 2100, 223, 43 South. 71; L. & N. R. R. Co. v. Britton, 149 Ala. 552, 554, 43 South. 108; Hightower v. Ogletree, 114 Ala. 94, 103, 21 South. 934; O’Connor Min. & Mfg. Co. v. Dickson, 112 Ala. 304, 308, 20 South. 413.
The rule of evidence announced is contrary to that prevailing in this jurisdiction in criminal cases. In Jordan v. State, 52 Ala. 188, 190, the justice says that—
“Where the admission of evidence to the jury depends upon the proof of some fact as a foundation, such fact must be shown to the court. Paysant v. Ware & Barringer, 1 Ala. 161. But if the genuineness of an instrument of writing is the fact in question, ‘the preliminary proof of its execution, given before the judge, does not relieve the party offering it from the necessity of proving it to the jury. The judge only decides whether there is, prima facie, any reason for sending it at all to the jury.’ 1 Greenleaf’s Ev. § 49; Halliday v. Butt, 40 Ala. 178.”
In Burton v. State, 107 Ala. 108, 126, 18 South. 284, 288, the court observed of the notes found on the body of the deceased that they were properly admitted in evidence:
“The handwriting of the defendant” being sufficiently proven to authorize their admission. In addition, there was independent evidence of written communications passing from defendant to deceased during school hours, in regard to a matter that defendant desired should be kept concealed from others.”
In Williams v. State, 123 Ala. 39, 26 South. 521, the letter written by one of defendants after the robbery, stating that he and his codefendant had $15, was held admissible with other evidence to prove the amount of money taken.
In the recent edition of Wharton’s Criminal Evidence, the rule is thus stated:
“Private writings, such as letters, telegrams, memoranda, and private publications, such as circulars or newspaper articles, when properly proved, are admissible in evidence in criminal eases, when relevant to the issues on trial. Such
writings and publications are documents, within the definition of that word as used in this work. The rule of admission is not extended in favor of such writings and publications, because, as a predicate of their admission, they must be duly authenticated and proved with the same solemnity as formal writings.
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THOMAS, J.
[1]
The petition conforms to the rules governing the same; and petitioner’s brief complies with the recent rule requiring certificate of the fact of service of copy of brief on opposing party. This court has jurisdiction, under section 140 of the Constitution, to superintend and control the Court of Appeals as to the rule of evidence announced by the latter court for the introduction of the letter in question, without due authentication or proof of defendant’s authorship or authorization thereof. The state’s motion is overruled; and we will consider the ruling in question in its relation to the true rule of evidence governing in this jurisdiction. Ex parte L. & N. R. R. Co., 176 Ala. 631, 58 South. 315.
Petitioner was indicted for and convicted
óf a violation of the prohibition laws. The sheriff found a prohibitive quantity of malt liquor in a room which it is contended was in defendant’s possession. The evidence for the state tended to show the burglary of a freight car and the taking therefrom of beer of the quantity and kind found stored in said room. Defendant denied the possession or occupancy of the room and any knowledge or participation in the burglary or taking of the beer from the ear.
[2]
Defendant’s counsel thus concisely states the question for decision:
“Over the objection of the defendant the state was permitted to introduce as evidence in the case a certain note or paper writing, alleged to have been found along with the prohibited liquors. It was not shown that the note was written by the defendant, or at his instance, or that he had anything to do with the placing of the note whore it was found. The note was in' words and figures as follows, to wit (Exhibit B): ‘Prank, please put this in the lounge and make Elvira burn the boxes and go to sleep and don’t talk. B.’ A witness for the state testified that the beer in question was stolen from the depot of the Central of Georgia Railway Company at Girard, Ala., and that the defendant had confessed that he stole the beer from a certain automobile stored in a certain garage. The defendant denied absolutely making the confession; denied all knowledge of the theft; denied possession both of the beer and of the room in which it was found.”
Over the objection of the defendant, timely interposed, that the execution of the above note or paper writing had not been traced to the defendant, and “that it was not shown that the note or paper writing was sent under any authority from the defendant, the state was permitted by the trial court to introduce said note, or paper writing, in evidence against the defendant. The defendant moved to exclude said note, or paper writing from the consideration of the jury upon said grounds, which motion the trial court overruled.”
The opinion of the Court of Appeals contains the announcement that—
' The “defendant’s contention in this connection is without merit, and the cases cited by him are not applicable here, nor do they afford any authority for the question involved. In response to the question by the solicitor to Sheriff Lindsay, who had testified that he made a search of the room of the defendant, ‘Did you find anything there?’ he answered, ‘We found
4Y2
cases of beer with this note on top of it.’ The note was as follows: ‘Prank, please put this beer in the lounge and make Elvira burn the boxes and go to sleep and don’t talk. B.’ It was also shown that there was a lounge in the same room, and that 91 bottles of beer were found inside the lounge. It is not shown that the note was written by the defendant or at his instance, or that he had anything to do with the placing of the note there, other than the evidence to the effect that he had stolen the beer that was recovered. The note which was found on top of the beer was as much admissible as a label on the bottle, or a tag on the boxes. Johnson v. State, 78 South. 716.
in other 'words, it was open to the jury to find that this note was connected with the presence of the beer at this particular place, and was a part of the circumstances surrounding its presence there.”
In the admission of this evidence over defendant’s due objection and exception, the trial court was in error. It is a well-established rule of evidence that where a letter, note, or telegram is received in due course, the same is not admissible as evidence against the author or sender, without proof of handwriting or authority, unless the same is in reply to a communication sent to the sender by the sendee. Rike v. McHugh, 188 Ala. 237, 66 South. 452; C. W. Zimmerman Mfg. Co. v. Dunn, 163 Ala. 272, 277, 50 South. 906; Owensboro Wagon Co. v. Hall, 149 Ala. 2100, 223, 43 South. 71; L. & N. R. R. Co. v. Britton, 149 Ala. 552, 554, 43 South. 108; Hightower v. Ogletree, 114 Ala. 94, 103, 21 South. 934; O’Connor Min. & Mfg. Co. v. Dickson, 112 Ala. 304, 308, 20 South. 413.
The rule of evidence announced is contrary to that prevailing in this jurisdiction in criminal cases. In Jordan v. State, 52 Ala. 188, 190, the justice says that—
“Where the admission of evidence to the jury depends upon the proof of some fact as a foundation, such fact must be shown to the court. Paysant v. Ware & Barringer, 1 Ala. 161. But if the genuineness of an instrument of writing is the fact in question, ‘the preliminary proof of its execution, given before the judge, does not relieve the party offering it from the necessity of proving it to the jury. The judge only decides whether there is, prima facie, any reason for sending it at all to the jury.’ 1 Greenleaf’s Ev. § 49; Halliday v. Butt, 40 Ala. 178.”
In Burton v. State, 107 Ala. 108, 126, 18 South. 284, 288, the court observed of the notes found on the body of the deceased that they were properly admitted in evidence:
“The handwriting of the defendant” being sufficiently proven to authorize their admission. In addition, there was independent evidence of written communications passing from defendant to deceased during school hours, in regard to a matter that defendant desired should be kept concealed from others.”
In Williams v. State, 123 Ala. 39, 26 South. 521, the letter written by one of defendants after the robbery, stating that he and his codefendant had $15, was held admissible with other evidence to prove the amount of money taken.
In the recent edition of Wharton’s Criminal Evidence, the rule is thus stated:
“Private writings, such as letters, telegrams, memoranda, and private publications, such as circulars or newspaper articles, when properly proved, are admissible in evidence in criminal eases, when relevant to the issues on trial. Such
writings and publications are documents, within the definition of that word as used in this work. The rule of admission is not extended in favor of such writings and publications, because, as a predicate of their admission, they must be duly authenticated and proved with the same solemnity as formal writings. But, when this condition is satisfied, the admissibility of such writings is dependent on their relevancy to the issues joined, and not upon their scope or character, as both court and jury are entitled to have all the aid that such evidence .can legally bring to charge on trial.” Wharton’s Crim. Ev. vol. 2 (10th Ed.) p. 1102, § 527d.
Again the rule finds statement under “Proof of the Execution of Documents,” § 546, pp. 1134-1136, of the same volume, as follows:
“There is, in addition to such documents, a large number of documents that cannot be classified under any general head, such as private memoranda, private writings, marks, brands, labels, abbreviations, symbols, and other indicia that frequently have an important bearing upon matters in litigation; and these must depend, for proof of their execution, upon testimony from some person qualified to testify to their execution and use for designated purposes. * * * The degree of proof is not lessened because the document is informal or not within a recognized statutory class, but proof of the execution of such document must be duly made. Thus a document purporting to be written by defendant is not admissible until it is shown to be in his handwriting.” Langford v. State. 9 Tex. App. 283, 287, 288; State v. Grant, 74 Mo. 33, 36.
In Langford v. State, supra, the justice observes of the introduction of a bill of sale without proof of execution by appellant:
“We are at a loss to know upon what principles of the law of evidence the statements, either of Mrs. Langford or of the witness Flint, could be legal evidence against appellant, he not being present. Before a jury they were calculated to, and no doubt did, prejudice his case. We think the bill of sale should have been shown to have been executed by appellant before admitting it in evidence.”
And in State v. Grant, supra, it is stated that—
“The state also offered, and the court admitted, over defendant’s objection, a note found in the office of Ewing, the school commissioner, purporting to be written by defendant. This note was not shown to be in the handwriting of defendant, and for that reason it was improperly admitted in evidence.”
Such writings as that in question, to be properly given in evidence against the defendant, must be duly authenticated and proved; and, after such proof or authentication, are competent and legal evidence not to determine the reciprocal rights of parties under the writing, but as collateral evidence merely, tending to prove' or disprove some fact in issue. As shown by the decisions, the instances in which such writings are admissible in evidence in civil and criminal trials of necessity are determined by the issues in the concrete case. 10 R. C. L. pp. 1094, 1095, §295.
It results from the foregoing that there was prejudicial error committed by the trial court in the admission in evidence over defendant’s objection of the note found by the sheriff on the beer, without due authentication or connection of defendant therewith.
Let the appropriate writ of certiorari issue to the Court of Appeals pursuant to the prayer of the petition.
Writ granted.
ANDERSON, O. J., and McODELLAN and MAYFIELD, JJ., concur.
SAYRE, SOMERVILLE, and GARDNER, JJ., dissent.