Brock v. State , 26 Ala. 104 ( 1855 )

CHILTON, C. J.

— 1. There is no connection whatever between tlie offence for which the prisoner was charged, and •the -declaration that “he was not done with Griffin yet,”' made afterwards. On the contrary, the evidence shows that no allusion was made to the burning, but to judicial proceedings had before Griffin as a..justice of the peace. Neither is there any evidence connecting the prisoner with the subsequent burning. These facts, being disconnected, independent circumstances, afforded no fair or reasonable inference tending to establish the guilt of the prisoner in respect of the charge upon which he was tried. A presumption is a probable inference which our common sense enables us to draw from circumstances usually occurring in such cases — an act of reasoning, by which the existence of one fact is inferred from the existence of other facts which are known. In the case before us, no presumption of guilt can be indulged as deducible from the prisoner’s declaration, and from the second burning, without first assuming that such declaration had reference to the first burning, as an implied admission of the prisoner’s guilty agency in it, and as evidence of his intention to repeat the offence in future. This assumption cannot be indulged, especially in the face of the testimony, which strongly tends to point the declarations to a different matter. There is, therefore, no known fact, or premise, furnished by the proof objected to, from which a reasonable and fair inference can be drawn. Hence we are of opinion, the proof was improperly admitted.

2. We are further of the opinion, that the court erred in permitting the State to prove, as a means of impeaching the mother and sister of the prisoner, who were examined as witnesses on his behalf, that the same proof was given against the prisoner before the committing magistrate that was made upon the trial, — that they were both present and were not examined; it appearing that their testimony was material to his defence. Although related to the prisoner, they were not bound, at the hazard of being impeached, to thrust themselves as witnesses upon the court. The known delicacy of the sex usually makes them shrink from examinations of the kind, and no inference ■ prejudicial to their veracity could be legitimately indulged from their failing to volunteer as witnesses before the magistrate. A presumption that they had sworn falsely, predicated upon the circumstance that they were not sworn before the examining magistrate, is too strained and far-fetched to be allowed.

Let the judgment be reversed, and the cause remanded.