Jacobi v. State

133 Ala. 1

Opinion

McCLELLAN, C. J.

Upon a full and exhaustive consideration of the question on .principle and authority, this -court iq. Lowe v. State, ruled that “the testimony of a witness on a 'former1, trial qr 'prosecution of the defendant, -for the same offense, is admissible as evidence. against him on a second trialj if the witness is beyond', the jurisdiction of the court, whether he hfis removed from the State permanently or for .an indefinite time;” or, to, state the ruling perhaps more accurately, that when the witness has removed from the State permanently or for, an indefinite .time, jds- testimony on any former trial of the .defendant for the same offense, may be given in evidence against, the defendant-on any subsequent trial. — 86" Ala.. 47. This decision has been often followed and reaffirmed by this court. We are entirely satisfied of its soundness; and we now again follow and reaffirm it.

Whether the predicate for the introduction of secondary evidence reproducing the testimony of Miss Parker on the former trial was sufficiently and properly laid on the last trial, is another important question for adjudication on this appeal. Of course the burden was upon the prosecution to show to the reasonable satisfaction of the trial judge that the witness had left and was out of the State at the time of the trial, and that her absence was of a permanent or indefinite nature. On tins matter evidence was adduced before the judge of the city court that process to secure the witness’ attendance had been sent to the -counties of -Chilton, Jefferson and Butler. -Chilton was the county of the witness’ last known residence in this State. The process was returned from that county “not found.” It does not appear in the evidence why process was sent to the county of Jefferson. It, too, was-.returned “not found.” It appeared that the witness had. at some indefinite time in tlie past taught school in Butler county, that after this, she returned there in the summer of 1900 ■on a visit, and that she ivas returning from that visit to her home in Chilton county,when the assault was committed on her by.the defendant. This writ to Butler county had not been returned. The. further evidence adduced by the State tending to prove that the witness.was permanently or indefinitely beyond the jurisdiction of the court was the testimony of O. E. Thomas, as follows: “That he is a half brother of Miss Lizzie Parker [the absent. witness] of Clanton, Alabama-; that he resides in Birmingham, Alabama, and has been residing and'was so residing there on the 23rd day of June, 1900 [the date of the offense]; that he had not resided with his mother and sister for the past five or six years; that on or .about the 23rd day.-of June, 1900 his mother, who was then residing in Clan-ton [Chilton county], became quite ill, and wired for witness to come to her bedside; she also summoned his sister, Miss Lizzie Parker, who was on. a visit to relatives at Chapman in Butler county, and that she arrived at Clanton on Sunday, the 24th day of June, 1900; that his sister said nothing to him as to what occurred between her and Sanford Jacobi in Montgomery on the previous night, and that he knew nothing of it until he saw and read a publication thereof in the Montgomery Advertiser on Tuesday morning, June 26th, 1900; that he then. mentioned the matter to his sister, and she said she was sorry any publicity had been given to the matter as it would tend to injure her; that Miss Lizzie Parker was about, twenty-three years old in June, 1900, and lived with her mother in Clan-ton, Alabama, and that she had no other home .than with her mother, and that her mother.had no other home in June, 1900; that his mother is a widow; that sometime in the month of January, 1901, his mother broke up her home in Alabama, and sold her house and lot and sold off all her household goods, except a little furniture which has not yet been sold, broke up housekeeping and went to Georgia; that his sister, Lizzie Parker, had gone to Georgia before her,, about tbe ,1st of January, 1901; that he had received a letter from his sis ter, lizzie, which he knew to be in her handwriting, about two weeks before the date of this trial [August 5, 1901], from Buena Vista, Georgia, the envelope containing said letter being postmarked Buena Vista, Ga., that his sister is an unmarried woman and has no home other than that of her mother; that witness at the time she left Alabama, did not say anything about a change of domicile, or about leaving the State permanently, or about acquiring a residence elsewhere than in Alabama; [that witness did not know when his sister would return to Alabama, if at all, and that he knew nothing whatever about her intentions upon this subject; that his sister, Miss Lizzie Parker, had testified as a witness for the State at the October term, 1900, on the trial of the case of the State against Sanford Jacobi under this indictment, and that said trial resulted in a mistrial, and that shortly after the former trial, which occurred in November, 1900, he had a conversation with his sister, Lizzie Parker, in reference to said trial, in which she stated: ‘I had rather die than to come back to another trial and go through the same ordeal.’ ” On the cross-examination of the witness Thomas, in answer to a question propounded by defendant, as follows: “Are you able to state whether or not your sister’s stay in Georgia is indefinite,” the witness said he could not. In answer to another question propounded by defendant, witness said he “was not able to state whether or not his sister, Lizzie Parker, was in the State of Alabama at this time or not, nor was he able to say whether or not she had been continuously absent from the State of Alabama from the time she left Clanton in January, 1901, up to the time witness received said letter from some point in Georgia, the envelope of which was postmarked ‘Buena Vista, Ga.,’ as he had before testified.”

The absence of a witness from the State may, for the purpose under discussion, be shown in two ways. It may be made to appear by evidence of a proper and fruitless search for him in every county in which there is any apparent likelihood of his being found, from which an inference may be reasonably drawn that he is beyond the jurisdiction of the court; or; without resorting at all to proof of such vain search, it may, of course, be shown directly that he is in- another State under circumstances from which it is-fairly'inferable that his return is contingent, uncertain and speculative. — Mitchell v. State, 114 Ala. 1; Thompson v. State, 106 Ala. 67, 74. And-evidence of this latter character may, of course, be strengthened in respect of the absence from this State by the -fact that officers charged under process with the duty of finding him here have failed to find him in the county of his former residence: We do not understand that it was sought to lay the necessary predicate in this case by evidence of the former class,- -but that the evidence of the issue and return of subpoenas or attachments was intended to be and was considered by the trial court only along with the other evidence as to- this witness being in the State, of Georgia. None of the evidence as to the writs was of importance except that as to the process which went to Ohiltop county, the former home Of the witness. It did not appear that- there was any likelihood of the witness being in the county of Jefferson or in the county of Butler. It was not shown that'she bad ever been in Jefferson or had any occasion to be there. So the fact that she w?as not there when the writ was in the hands of the sheriff of that county has no legitimate tendency to show that she was out of the State. As to Butler county it was shown that she had been there temporarily at some unidentified time' in the past engaged in teaching a school, but this engagement had ended some considerable time before the offense charged; and that just before the assault upon her she had returned to that county on' a visit to relatives, a necessarily temporary occasion which had' ended on the day of the assault. There being no likelihood of her presence in Butler county at the time of the trial or just prior thereto there was no occasion to send process to that county for her, the return of not found on such process would not have shown that she was absent from the State, and the failure of the officer tó return the writ at all neither authorizes an inference that she was in that county nor goes to weaken other evidence tending to show that she was beyond the jurisdiction of the court. But .the return of the sheriff of Chilton county that she could not.be found in the county of her former residence was pertinent and competent, and entitled to consideration in connection with the other evidence going to show her absence from the State.

The inquiry then'being whether the witness was beyond the jurisdiction of the court, that is, beyond the boundaries of the State, we have a return of an officer going to show that she could not be found in the county of her former residence, the only residence there is any evidence tending to show she. ever had in the State, and with this the testimony of her brother, that her home had been up to January, 1901, with her widowed mother in Clanton, Chilton county, that in. said month this home had been entirely broken up, that the mother sold, her house and lot — her home — in Clanton, and all her household effects except a little furniture “which has not yet been sold,” — the inference being that even this' remnant was for sale — “broken up housekeeping,” “broke up her home in Alabama, and went to Georgia ” that his sister also went to Georgia, that she, the sister, was in Georgia six months after this removal, the prima faeie presumption being that she had remained there during that time, and was in Georgia two weeks before this trial, the prima facie presumption being that she had continued there up to and was there at the time of the trial; and, in effect, that if either the mother or sister had ever returned to Alabama he, the son and brother, knew nothing of it. 'In addition to this there is evidence of a motive on the par,t of Miss Parker to remove herself beyond the jurisdiction of the court and to remain out of the State indefinitely. She declared to her brother sometime within the period of less than two months intervening between the time of the first trial and her departure to Georgia, that she had rather die than return and go through, the ordeal of another trial, her precise language being:. “I had rather die than to come back to another trial and g° through the same ordeal.” Here there is proof.of adequate motive for Miss Parker to leave and to remain indefinitely out of the State. Here is- proof that the only home she had or ever had in the State' was broken up, the house that sheltered her and the household' goods • sold.- : - Here -is proof that the mother, with whom she lived afld had ah ways lived, -and naturally would live as long as she 'remained unmarried, having- no longer a 'home in Alabama, nor aught else, so far as the evidence goes,'to' keep her here dr to-bring her back,' but having thus disposed of -all her effects, went to Georgia, and' the daughter' with her; and prima facie■ that 'since they went they have there remained, and were there at the time of the trial. Being there undeir these circumstances there is no- warrant for saying their-stay is of a’-temporary nature, but every pertinent consideration points to its in-definiteness, "if not indeed to -itá permanency. So-we conclude', in line,-We "believe, With-a-lhof our adjudications, all o-f which have been - atten lively considered, that the evidence with' requisite clearness ■ showed that the witness,- Lizzie Parker, was permanently Or indefinitely absent from the State at‘the time'of-the trial-below, and that' the city1 court -properly admitted evidence of her testimony-on the former trial.

We have not been inattentive-to the Objection and -'exception reserved in the' court below to the admission in-evidence of the ■ declaration of Miss Parker ' that she “'had rather die than to come'back to another trial and go' through the same' ordeal,” nor' to • the strong argument of counsel in support of that exception. ' But' we are of -opinion that the position is not tenable, and 'that the declaration belongs to- that class of expressions' of present mental conditions -which are competent 'as'exceptional from the rule against hearsay and wholly' apart from the doctrine of res gestae: There being evidenc'd of Miss Parker’s' having left and being absent from the-State, the further-inquiry was whether that absence was of a temporary, or of a permanent -or indefinite nature, and this w-as largely a matter of intention on her part deducible from the considerations find ■ purposes which actuated her in leaving and remaining out of the State. Expressions -by her 'of mental conditions having á bearing on this inquiry which to- all'appearances were made naturally and sincerely, are admissible as original ev iclence. It- is of t-liis class of' -declarations among others that Mr. Greenleaf-says: “Wherever the bodily or mental feelings of an individual are • material to be proved, the usual expressions of such feelings, made at the time in question, are’ also -original evidence. If they were the natural language of the affection, whether of body or mind, they furnish satisfactory evidence and often the only proof -of its existence; and whether they were real or feigned is for the jury to determine [the court in this instance]. In the words -of L. J. Mellish : ‘Wherever it is material to prove the state of a person’s mind, or what was passing in it, and what-were his intentions, there y-ou may prove what he said, because that is the only means by which you -can find out what his intentions were.’ This use of such statements is often spoken of as admissible under the res gestae notion, or as ‘original’ evidence, i. e., not an exception to the Hearsay rule. But this seems clearly unsound. T-her.e is one sort of evidence of mental condition which is in- truth merely indirect or circumstantial, and, therefore, not subject to the Hearsay rule, e. g., where the sharpening of a knife on the morning before the homicide is taken as evidence of a design to kill, or where the repeated infliction of blows indicates ina-lice, or where running away is taken as indicating fear. But -where a distinct assertion in the forms of words predicating a mental state is offered, — as ‘I have a pain in my -side,’ or ‘I have the intention of going to town,’ or ‘I do this for such and such a, reason,’ — this language is no less an assertion of the existence of a fact than is an assertion of any other -sort of fact; in the neat phrase of L. J. Bowen: ‘The state of a man’s mind is as much a fact a-s the state of his digestion;’ and, therefore, such assertions, being taken on the credit of the declarant as testimonial evidence of the fact asserted, • ai*e met by the Hearsay rule. To admit them then is to make an exception to the Hearsay rule. The different kinds of facts that may be the subject. Of such assertions may be grouped as-follows: (1.) Assertions of pain or other physical condition; (2) assertions of plan, .design, intention; (3) assertions of feeling, emotion, motive, reason; (4) sundry assertions by a testator.” ■ ■

“The existence of a person’s design or plan to do a thing- is relevant circumstantially to show that he ultimately did it. The presence of the design or plan may be evidence circumstantially by conduct; but the pex*sons’ assertion of a present design or plan when made in a natural way and not under circumstances of suspicion, is admissible under the present exception. The res gestae notion is often put forward, but improperly, as the justification of this; for the reason already explained such statements must be x*egarded as admissible by virtue of the present exception. They are generally treated ¡as admissible; though a few courts are found to exclude them, usually through a misapplication of the res gestae principle. Statements of intent where the intent becomes material in determining a person’s domicile, are sometimes treated as admissible by reason of the res gestae or verbal-act doctrine; but it is perhajxs better to regard them as governed by the present exception. Statements of intent accompanying an alleged crime are usually admitted according to the res gestae• doctrine.”

“Statements of x'eason, motive, feeling, emotion ar-e equally included under the general principle, and are admissible so far as ¡they appear to be natural and sincere. For example, where the reason or motive for the departure of certain' workmen was a part of the plaintiff’s case, the statements of the workmen to the superintendent, when leaving, as (to their reason for it, were admitted. * * * So- also statements describing one’s fear, belief, cheerful or melancholy feelings or the like, physical disgust, hostility or affection, and the like.” — 1 Green. Ev., §§ 162«-162d. The Supreme Court of Minnesota applied the principle just stated to the declaration of an absent witness that he was then domiciled in another State, in connection with evidence that he had left the State of the forum; and held on evidence very like that in the case before us that the testimony of the witness on a former trial was admissible. King v. McCarthy, 54 Minn. 190. In a leading case in Massachusetts, the court held: “Declarations of a per son. accompanying a- change of his abiding, place have always been held, competent to explain the change as a part of ¡the res -gestae; bnt declarations in ;such. cases are often admissible on - a broader ground -than as part of the act. of removing from one place to another. The intention of the person-'removing is competent to be proved as an independent fact,- and ' anything which tends to show his -intention in making the change may be introduced, if it is free from objection in other particulars. .The intention may be inferred from acts and conduct, and -conduct which tends to show the intern tion is competent for that purpose. Declarations which indicate the: state of mind of the declarant naturally have a legitimate tendency- to show- intention.” — Viles v. Waltham, 157 Mass. 542.

:The declaration.of Miss' Parker showed a state or condition of her-.mind bearing directly on-the inquiry whether she had-left the:State and whether her absence was temporary,- or indefinite or permanent,-and tended naturally to show-.such, motive and intent in leaving as supports the conclusion that her absence- is at least of an indefinite-nature. ■ It was properly received in evidence and considered by the city court,- under the authorities and principles to -which- we have adverted, and is a part of the-.evidence-for our consideration here in determining whether the _ witness is indefinitely-' absent from the- State. -The-declaration is a perfectly natural one for Miss Parker to. have made under the circumstances, and.entirely in line with the disposition to avoid putting herself forward and publicity which she has shown throughout the case. There can scarcely be a doubt that the declaration was a sincere statement of the condition of her mind on the subject of attending another trial of this defendant, a condition which would naturally lead her to leave and remain away from the State.

It may be that the evidence ■ before the judge of the city court other than this- declaration was sufficient to establish the necessary predicate for proof of Miss Parker’s former testimony- We have not considered it except in connection with- the declaration, deeming that clearly competent. And if such other, evidence was sufficient, the admission and consideration of this declaration by the city court, conceding ¡the action to have been erroneous, would not require or authorize a reversal. This issue upon which .the declaration was received was one solely for the determination of the judge. The evidence was addressed to him alone, and not to him and the jury, as, for instance, evidence to lay a.predicate for confessions is addressed;• and the question here is not whether he received irrelevant or otherwise incompetent evidence, but whether the competent evidence before him. proved the preliminary facts involved in the inquiry. — Burton v. State, 107 Ala. 68.

The first charge given at the request of the. State is not open to the criticisms made by counsel. The charge in its forepart requires the jury to believe the .facts hypothesized beyond a reasonable doubt, and then, before directing the jury as to any conclusion upon them, the charge declares that, the jury are authorized to look at these facts if they he facts, in connection with all the other evidence, . etc., etc,;. thus authorizing • a consideration of facts stated, hypothetically, .not if believed by the jury merely, and -not, even merely if believed beyond, a reasonable doubt by the jury,- but if and only if the facts absolutely exist.. The charge in this respect is too favorable to the defendant. If it is faulty in singling out certain facts to the exclusion of others, that fault would not require a reversal for the giving of it.

We do not feel that any argument or suggestion is necessary to sustain the proposition of the second charge: “Any touching by one person of the person of another in rudeness or in anger, is an assault and battery; and every assault and battery includes an assault.”

That there vyas evidence before the jury tending to support every material allegation of the indictment there can and is no sort of doubt; and for the court below to have given the affirmative charge requested by the defendant would have been a most palpable and flagrant invasion of the right and exclusive province of the jury to pass upon the sufficiency of this evidence.

Charge 1 was properly refused to the defendant for that it assumes that tbe charge against him was rape; and if this fault were eliminated, its refusal would yet not work a reversal because the substance of it was given the jury in another instruction requested by the defendant.

Charge 2 refused was properly refused both for the reason that an important word intended to he in it is omitted from it, and for the further reason that with the word supplied the charge is unsound. It is not essential to the crime of assault with intent to ravish that the perpetrator should have intended that his accomplished act .should be rape. The expression of the charge is inapt and inaccurate.

• Charge 3 refused to defendant is elliptical and incomplete on its face.

Charge '4 • refused to. the defendant was abstract. There was no evidence of any conduct or anything in the conduct of Miss Parker which impliedly or otherwise gave her consent- to the liberties taken by defendant with her person. The charge also specifies some facts and excludes others from the jury’s consideration.

We find no error in this record, and the judgment of the city court must he affirmed.