Pruitt v. State

92 Ala. 41

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

COLEMAN, J.

Whatever rule may prevail in other states or countries, it is settled law in this State, that where a witness has been examined in a criminal trial, and cross-examined, or the opportunity afforded for cross-examination by the party charged, and the witness dies, or becomes insane, or has gone beyond the jurisdiction of the State, permanently, or for such • an indefinite time that his return is merely contingent or conjectural, the testimony of such witness may be proven on a subsequent trial. — Greenl. Ev. (12th Ed.) § 163, and note ; Long v. Davis, 18 Ala. 801 ; Marler v. State, 67 Ala. 55; Lowe v. State, 86 Ala. 52 ; South v. State, Ib. 617.

The predicate in this case for the introduction of such testimony sufficiently complied with the requirements of the lawr. The witness called to prove the testimony of the absent-witness, stated that “Clem Bates [the absent witness] left about two months ago, and went to the State of Arkansas, as I was informed. Said Bates is still absent from the StateS It was shown that the witness was legally sworn and examined, on a preliminary trial for commitment, and also on habeas corpus proceedings. Prima faeie, the evidence wras admissible. Tt was not competent to show that the absent witness had made statements different or contradictory to those proven to have been testified to by him on the former trials, and there was no predicate for such ■impeaching testimony. In all such cases, it is necessary to first interrogate the witness himself as to such contradictory statements, giving time and place, with reasonable certainty.

In the course of his argument before the jury, referring to the evidence of the defendant, the solicitor stated “that the evidence of the defendant is the meanest and poorest evidence in the world.” Exceptions were taken to these statements by the defendant, and a charge requested by the defendant to be given to the jury, based upon this statement was refused. By numerous decisions of this court it has been held, that for an unwarranted trespass upon the domain of unproven facts, the case will be reversed. To authorize a reversal, however, there must be a statement, “as of fact.” Comments and criticism by counsel upon the character of the evidence adduced, or the weight to be given to testimony, as affected by the interest of the witness in the result of the trial, is not an invasion of the rule. A witness should be protected from undue personal abuse in argument, but to assert in argument that the testimony of a defendant, examined in his ■own behalf, “was the meanest and poorest kind,” is not the statement of any fact as evidence, but the assertion of an inference as to its weight and credibility, deduced from the interest the witness had in the matter and result of the trial. L. & N. R. R. Co. v. Orr, 91 Ala. 548; Clarke v. State, 68 Ala. 474.

There was evidence tending to show the guilt of the defendant. The general charge, under such circumstances, should not be given.

Affirmed.