Green v. State

41 Ala. 419

Opinion

JUDGE, J.

No sufficient predicate was laid for the introduction of secondary evidence of the contract between the prisoner and Jefferson Falkner. The witness who testified to his possession of the books and papers of Mr. Falkner, had never looked for the original contract, and had no recollection that it had been destroyed. Non constat, but that it was in existence, and ’among the other papers of Falkner in the possession of the witness at the time of trial.—1 Greenl. Ev. § 568, and authorities cited; 4 Phil. Ev. (Cowen & Hill’s Notes,) pp. 404-5; Tannis v. Doe, d. St. Cyre, 21 Ala. The city court therefore erred in permitting the secondary evidence to be introduced.

2. The charge of the court authorized the jury to find the prisoner guilty without proof of the venue. This was also erroneous.—Shepherd’s Digest, p. 20, § 22.

3. The charge was also erroneous, in authorizing the conviction of the prisoner without proof that the false oath was taken loillfully and corruptly.—1 Bishop’s Criminal Law, § 233; Ogletree v. The State, 28 Ala. 693.

The judgment must be reversed, and the cause remanded. Let the prisoner remain in custody, until he is discharged by due course of law.