Morton v. State , 30 Ala. 527 ( 1857 )

STONE, J.

The rule which requires the production of the best evidence which the nature of the question admits of, is one of the oldest and most salutary principles found in the law-books. It has its exceptions. The most common of these exceptions is, that in case of the loss or destruction of a written instrument, which the proof shows has been in existence, secondary evidence of its contents may be received. The proof, however, is prima facie irrelevant, and becomes relevant only after the establishment of the preliminary fact. — See Cow. & Hill’s Notes to Phil. Ev. (ed. by Van Cott,) 2d part, pp. 405-9, 430, 412, 413, 443; 1 Greenl. Ev. §§ 88, 509, 560.

In the case we are considering, there is no evidence that tlie paper is destroyed. Tbe proof shows that, on tbe trial of another person, previously bad, it was seen in tbe possession of an attorney, who was engaged in tbe defense of that person. That attorney has not been called to answer as to its possession ; and no excuse is offered for the omission. "We bold, that tbe proper predicate has not been laid to let in tbe secondary evidence.- — -Cow. & Hill’s Notes, part 2, pp. 442, 412, 413, 443 ; 1 Greenl. Ev. §§ 82-3-4, 575; Evans v. Bolling, 8 Porter, 546; Derrett v. Alexander, 25 Ala. 268.

"When tbe primary evidence is in tbe bands of an attorney, under circumstances which excuse him for its non-production, perhaps a different rule prevails. — See Roscoe’s Or. Ev. 8 ; 1 Greenl. Ev. § 560, and note. Tbe bill of exceptions does not inform us that this paper was thus held.

This receipt does not appear to have been at any time in tbe office or possession of tbe clerk of tbe city court. Hence, tbe search made by him was unnecessary, and did not legalize tbe secondary evidence. — -1 Greenl. Ev. § 560, note.

Tbe Code (§ 3525) does not bear on this question. It only excuses a variance between tbe indictment and proof, in tbe particular case for which it provides.

Tbe judgment of tbe city court is reversed, and tbe cause remanded. Lot tbe prisoner remain in custody, until discharged by due course of law.