Tharp v. State

15 Ala. 749

Opinion

COLLIER, C. J.

1. It is provided by statute, that the magistrate before whom any person is brought on a charge of having committed an offence, shall, as soon as may be examine the complainant, and the witnesses to support the prosecution, on oath, in the presence of the party charged, in relation to any matters connected with such charge, which shall be deemed pertinent: Further, the testimony of the witnesses examined, shall be reduced to writing by the magistrate, or under his direction, and shall be signed by the witnesses, if required by the magistrate. All examinations and recognizances touching criminal offences, shall be certified by the magistrate taking the same, to the court at which - the witnesses are bound to appear, on or before the first day of the sitting thereof; and if he neglect to make such return, he may be compelled by rule of court, and in case of disobedience, maybe proceeded against by attachment. Clay’s Dig. 449, 450, § 25, 27, 33.

The question arising under these several provisions, is, was the secondary evidence of the examination of the prosecutor, admissible on the trial of the prisoner in .the circuit court ? It is well settled, notwithstanding the declaration of the magna charla of England, and the constitutional provision of most, if not all the American states, that in all criminal prosecutions, the accused shall be confronted with the witnesses, and have compulsory process to obtain the attendance of such as he may desire to testify for him, that it is not universally essential to the admission of evidence agairfst him, that the witnesses should be examined orally at the trial. The right thus secured to the accused, does not forbid the proof of the dying declarations of one who has been killed, against a party charged with his murder. Anthony v. The State, Meigs’s Rep. 276; Woodsides v. The State, 2 How. Rep. (Miss.) 655. So, depositions taken before the examining court, in the presence of, and on cross-examination by, the prisoner; or even not in his presence, if he knew that the examination was being made, and had an opportunity, but declined to examine the witnesses, are received as evidence, if the witnesses are dead. Bostick v. The State, 3 Hump. 344; The State v. Campbell, 1 Richard. Rep. 124. See also U. S. v. Wood, 3 Wash. C. C. Rep. 440; The State v. Atkins, 1 Overt. Rep. 229; Scott v. Wilson, Cooke’s Rep. 315; Rex v. Barber, 1 Root’s Rep. 76; State v. Hooker, 17 Verm. Rep. 658.

It has been decided, that it is not allowable, in a criminal proceeding, to prove what a witness, who has only removed out of the jurisdiction of the court, testified on a previous trial of the same case. Finn v. The Commonwealth, 5 Rand. Rep. 701; The People v. Newman, 5 Hill’s Rep. (N. Y.) 295.

In Clark v. Vorce, 15 Wend. Rep. 193, the defendant of fered to prove the testimony of H. a deceased witness, given on a former trial of the cause, and called a witness, who stated, that on the previous trial, he had acted as counsel for the defendant, and took full and particular minutes of H.’s testimony; that he intended, at the time, to take down the words of H., but could not pretend to give his precise words; that he could not swear to H.’s testimony, except from the minutes taken by hini on that trial; and could not now testify that he had taken down every word of his testimony, but he intended, at the time, to take down all he regarded as material. The supreme court said, the notes of the testimony should have been received, connected with the counsel’s oath as to their accuracy. “ It was his intention; at the timé, ■ tó take down the words of the witness--not the substance, or legal effect, of his testimony. The reason assigned in 4 Ser. & Rawle, 203, against receiving the notes of the counsel, is not applicable to this case. Here, it Was the intention of the witness to take down, not the substance, b'út the words, of the witness. The offer, in this case, comes Within the rule, as stated in Williams v. Selden, 6 Cowen, 164. The Witness Was ready to Swear to his belief of the accuracy of his minutes, and it was his intention to take down the words of the deceased witness.”

We have heretofore decided, that it is allowable to prové what a deceased witness stated on á former trial of the same cause, between the same parties; and said that it Was süfficient, in such case, to state the whole of the substance of what the deceased testified, though his precise words are not recollected. Gildersleeve v. Caraway, 10 Ala. Rep. 260; Sloan v. Somers, 1 Spencer’s Rep. 66; Garrott v. Johnson, 11 Gill & Johns. Rep. 173; Smith v. Natchez Steamboat Co. 1 How. Rep. (Miss.) 479; Moore v. Pearson, 6 Watts & Serg. Rep. 51. But a witness offered to prove, what was deposed to on a former trial between the same parties; by a person who is dead, must give the substance, not the effect, of the testimony. Ballenger v. Barnes, 3 Dev. Rep. 460; Bowie v. O’Neale, 5 Har. & Johns. 226; Wolf v. Wyeth, 11 Serg. & R. Rep. 149.

In the case at bar, the prosecutor died after his examination before the committing magistrate, and the magistrate testified at the trial, that his testimony, or so much as he considered material, was reduced to writing, by him, under the statute; that the defendant was there, and cross-examined. It was also proved, that the written examination of ,the deceased witness, could not b,e found in the office of the clerk of the circuit court of Barbour, nor in the office of the clerk of the circuit court of Henry, to which a former indictment in this cause had been removed, by a change of venue: Further, that the written examination could not be found in the office of .the committing '.magistrate. Upon this state of facts,, the magistrate was allowed to prove the substance of the testimony of the prosecutor thus reduced to.writing by -Jiim.. We think this evidence was improperly admitted. Perhaps, the preliminary proof did :no:t lay a sufficient predicate for the in? troduction of the secondary testimony, Although,, as a general rule, the law presumes all public officers perform the duties devolved upon them, until the contrary appears, we incline to think, that this presumption cannot be indulged, in •the present case; but it should have been shown, that the ■written .examination was actually returned, as the statute rer quires,-or that it could not only, not be found in the magistrate’s office, but that he did not know where it was. We will not affirm that the rule should be thus rigidly applied, but if it is not, inferior evidence might be adduced, when higher is attainable. It does not appear, that ,the entire examination of the prosecutor was reduced to writing, but only so much as the magistrate believed to be .material,,and that he only professed to state the substance of what was .written down. The statute directs the testimony of the witnesses examined, to be reduced to writing, not apart of it,¡b,ut all, if not in their own words, at least so as to preserve, with exactness, the sense, and meaning, of the words used. It is not permissible for .the .magistrate to determine what portion of it is material; if the testimony is legal, and has been received by him, his duty is plain, and defined. If he attempts to disr criminate, and omits some part of the .evidence, the accuse^ cannot be prejudiced, by having an incomplete recital of it read as evidence against ;him, unless, perhaps, the omitted part can be proved. The recognition of a more relaxed .rule might cause the conviction of a party upon evidence, the ef feet of which might be materially modified, by the addition of what the magistrate deemed unimportant. If, then, the writing itself would not bo admissible, without proof of the testimony not embraced by it, it follows, that secondary evidence of its contents should not be received, without proving what was omitted to be inserted in it. This conclusion seems necessarily to flow from the legal requisition that the substance, not the effect, of what the deceased witness testified, must be proved. Whether the part of the testimony not reduced to writing, could be proved by the justice, even if his recollection would enable him to state it, is a question not presented by the record, and we will not therefore decide it in advance. If, however, he would say, from his own recollection, that' the lost writing set out all that the prosecutor deposed to, then the proof of its contents would be sufficient.

2. When it is necessary to prove “a guilty knowledge” on the part of the accused, it is sometimes allowable, to give evidence of other offences committed by him, though not charged in t he indictment. Thus, if one be indicted for uttering a forged, bank-note, knowing it to be forged, it may be shown, that other forged notes were uttered by the prisoner, for the purpose of showing his knowledge of the forgery. So, upon a charge of uttering counterfeit money, proof is received, (for the same purpose,) that there was more than one uttering, of similar coin, by the party about the same time, though but one is alleged in the indictment. 2 Russ, on Crimes, 697 and citations in notes ; The State v. Robinson, 1 Harr. Rep. 507: The State v. Petty, Harper’s Rep. 59; 4 Dev. 606.

The charge of the circuit court upon this point, affirms, that if it was'proved, that the prisoner passed other and similar spurious coin, the law would raise the presumption, that the prisoner knew the coin which he was charged with having uttered, was spurious. This goes quite beyond the rule, as we have deduced it from the books. The jury were informed, that the fact of the prisoner having passed the counterfeit coin, being shown, it was a legal presumption, that he knew the character of the one, which the indictment charged him with having uttered. Thus assuming, as a conclusion of law, the guilty knowledge of the prisoner, merely because he passed other similar coin which was spurions. The court invaded the appropriate functions of the jury forestalled their inquiries, as to the scienter, which was properly referable to them, and an indispensible element in determining the prisoner’s guilt. It should have, been submitted to the jury to determine, whether upon a view of all the circumstances, the previous knowledge that the coin was not genuine, was established. The proof would be stronger or weaker, according to the circumstances, time, when, fyc., under which the other coins were passed. All these considerations, we have seen, were excluded from the jury.

It is however, insisted for the state, that as none of the evidence is set out in the bill of exceptions, the charge of the circuit judge must be considered as abstract,;and"does not authorise a reversal of the judgment. This argument cannot be supported. In Peden v. Moore, 1 Stewt. & P. Rep. 71 it was said, “where an exception is taken for a refusal tq 'instruct, the bill must embrace so much of the evidence as to show, that the instructions asked for, arose out of the cause: but where instructions actually given are excepted to as mistaking the law, no part of the testimony need be stated, to authorise the appellate court to revise the case upon the bill of exceptions : and this distinction is founded upon the presumption, that whatever is done in a court of justice, will be .presumed to be legally done, until the contrary appears. This view of the law, has been followed in all our subsequent decissions, and we are still willing to adhere to it.

It follows, that the judgment of the circuit court of Barbour must be reversed ands the cause remanded. That the prisoner may_be committed to the proper custody, the clerk of this court will issue a mandate, addressed to the sheriff of Barbour county, embracing therein, the judgment of this court, ordering him to demand the prisoner of the warden, or lessee, of the penitentiary, and requiring the wardeja, or lessee, to deliver the prisoner to said sheriff, upon being furnished with a copy of the mandate, and a -receipt at the foot thereof, acknowledging such delivery: and commanding the said sheriff, to transfer the prisoner to the jail of his county, for safe keeping, until he shall be discharged by due course of law, or regularly removed to some other place of trial, or confinement.