Marler v. State , 67 Ala. 55 ( 1880 )

SOMERYILLE, J.

— The main question presented for our consideration in this ease, is the admissibility of the wdtness Roberts’ testimony as to what one Redman had previously sworn on the preliminary investigation before the committing magistrate. Redman had there testified for the State, under the sanction of an oath, subject to a full cross-examination by the defendant. Before the trial in the Circuit Court, in which he was jointly indicted with the appellant, Marler, he became insane, and was so pronounced by the verdict of a jury and the judgment of the court, after which a severance of the case was granted. The court admitted the substance of Redman’s testimony, as given before the magistrate, to be proved, to which an exception was taken, and this ruling of the Circuit Judge is assigned as error.

The general rules of evidence at common law, subject to few exceptions, are the same in civil and criminal cases, being more liberal, at least in some instances, in the latter than the former. Dying declarations, for example, are never admissible in civil cases, but only in charges of homicide. It is manifest, indeed, that the danger of perjury is not usually so great in matters of crime, which government and society are chiefly interested in punishing, as in those cases involving large pecuniary interests, as the experience of mankind has taught in all countries where nuncupative wills have been allowed.- — 2 Best Ev. § 505.

.It is now established beyond disputation that, where a witness has testified under oath, in a judicial proceeding, in which an adverse litigant was a party, and was subject to cross-examination, the testimony so given is admissible, after the decease of the witness, in any subsequent suit between the same parties. — 1 Greenl. Ev. 163; 2 Best Ev. § 496; 1 Phil. Ev. (C. H. & E.) 389, note; 2 Russ. Cr. 683. And in Horton v. State, 53 Ala. 488, this principle was declared “applicable alike to civil and criminal cases,” and this court, on the strength of it, sustained the admission of the testimony of a deceased witness, taken down by a committing magis-. trate on preliminary investigation, when introduced on trial under indictment in the Circuit Court.

Such testimony is not liable to the objections ordinarily urged against hearsay or derivative evidence, for it was delivered under the sanction of an oath, and the adverse party has had, or might have had, the full benefit of a cross-examination. — 1 Stark. Ev. 42. It is, therefore, admitted rather upon the principle of necessity, than of expediency, so as to prevent the defeat of the ends of justice “ The admission of such evidence,” says Mr. Wharton, “is based upon the fact that the party against whom the evidence is offered, having had the power to cross-examine at the former trial, and the parties and issues being the same, the second suit is virtually a continuation of the first.” — Law of Ev. § 177.

We are of opinion that the reason of the rule applies, with unanswerable force, to all cases where the witness has become insane. As said by Lord Kenyon, in Rex v. Eriswell, 2 Durnf. & E. 386 (3 T. R. 707), he is, to all intents and purposes, to be considered “in the same state as if he were dead.” And though the question was left undecided in that ease, Buller, J., concurring with Lord Kenyon, regarded the party “ as dead, he being in such a state as to render it impossible to examine him.” — Ib. 391.

A case, however, clearly in point is that of Regina v. Marshall, Car. & Mar. Rep. 147. It was there held that where a witness was actually insane at the time of the trial od indictment, his deposition, taken before the committing magistrate, could be read the same as if he were df-ad, although the insanity be but temporary; but not where the witness was suffering from delirium through injuries produced by a blow on the head, if his physician was of opinion be would recover. In Rex v. Hogg, 6 Car. & P. 176, where a prosecutor, in a case of felony, was bed-ridden, and there was no probability that she would ever be able to leave her home, her deposition taken before the magistrate was held admissible in the same manner as if she were dead. In the Earl of Strafford’s case it was adjudged, “ that where witnesses could not be procured to testify viva voce, by reason of sickness, &c., then their depositions might be read, for or against the prisoner, but not when they might have been produced in person.” — 2 Hawk. Pl. Cr. ch. 46, s. 20.

There seems to be no difference of opinion on this question among the best text-writers. Mr. Greenleaf asserts that such evidence is admissible, “if the witness, though not dead, is out of the jurisdiction, or cannot be found after diligent search, or is insane, or sick and uuable to testify, or has been summoned, but appears to have been kept away by the adverse party.” Mr. Wharton takes the same view, thinking the rule applies “ when, from the nature of the illness or infirmity, no reasonable hope remains that the witness will be able to appear m court on any future occasion,” and he adds: “ Menial incapacity, from whatever cause, is a sufficient inducement. It has been said, that if the insanity is temporary, the true course is to continue the case until the witness recovers; but the contrary view has been expressed by an English court, and there are some classes of cases (e. g. criminal of high grade) in which such a continuance cannot in law be granted, and others in which the inconveniences would be so great as to amount to an obstruction of justice.”

The annotator of Phillips on Evidence approves the application of the principle in question to cases where the witness has become insane, and others of like character, and arrives at the conclusion that “ those [cases I which have come nearest to the liberal principle on which secondary evidence is generally received, are less anomalous, and therefore more scientific than the narrower decisions.” — 1 Phil. Ev. (C. & H. and E.’s notes), 393.

Mr. Justice Cheves, in Drayton v. Wells, 1 Nott and McCord, 409, says : “ The books enumerate four cases only in which the testimony of a witness, who has been examined in a former trial, between the same parties, and where the point in issue is the same, may be given in evidence, on a second trial, from the mouths of other witnesses, who heard him give evidence : 1st. When the witness is dead ; 2nd. Where he is insane; 3rd. Where he is beyond seas; 4th. Where the court was satisfied that the witness had been kept aivay by the contrivance of the opposite party.”

In Ernig v. Diehl, 76 Penn. St. 359, the rule as enunciated by Mr. Greenleaf is endorsed by Sharswood, J., and was applied to one in such a state of senility as to have lost his memory, all of the seven judges concurring on this particular point.

In Rogers v. Raborg, 2 Gill and J. 54, the Supreme Court of Maryland admitted the deposition of a paralytic, who, though regularly summoned as a witness, was unable to leave his home, or speak so as to be understood. The court declared the evidence admissible on the ground of necessity, the witness being the same as if he were dead.

The courts of Louisiana have gone so far as to admit such testimony in the case of the temporary sickness of a witness. In Miller v. Russell, 7 Mart. Rep. 266, where a witness had been examined and notes of his testimony carefully taken, the court said : To have examined him again, laboring under disease, would have afforded no better evidence, perhaps not so clear, as that which had been obtained from him on the former trial.” But as Lord Ellenborough suggested in Harrison v. Blades, 3 Camp. 458, in such cases, it should appear that the sickness is of a character imposing permanent inability, as, otherwise, there would be very many sudden indispositions and recoveries.

In Kendrick v. State, 10 Hump. 479, the Supreme Court of Tonnessee indorsed the principle admitting the testimony of a deceased witness given in a former trial, and declared the maintenance of the rule, in criminal cases, to be of far greater importance to the lives and liberty of defendants than of mere justice to the State.

This court, in Long v. Davis, 18 Ala. 801, admitted the deposition of a witness, taken in a former suit, after his removal from the State, in a subsequent suit between the parties. Chilton, J. said : “ We think the more liberal doctrine which allows a permanent absence from the jurisdiction as an excuse, is more consonant with the legal analogies, and is sustained by the preponderance of authority.”

It has been held by some of the courts, including those of New York and Yirginia, that no evidence of this character, save that only of deceased witnesses, is admissible in criminal cases, but this view, we believe, is opposed to both the weight of reason and the preponderance of authority. Whether originating in necessity or based on expediency, the purpose of the rule is to prevent the defeat of justice ; and tested by this principle, there is no real or practical difference between the death of the mind and the death of the body. If a man’s reason be utterly dethroned, it were all one, in the eye of the law, so far as regards his capacity to testify, that his body were in the grave.

It is very clear that such evidence is no more a violation of the constitutional right of every citizen to be confronted by his witnesses, than the admission of dying declarations, and in fact, much less so, as the defendant has once exercised this right, and had an opportunity to elicit the truth by cross-examination. — Kendrick v. State, 10 Hump. 479; Com. v. Richards, 18 Pick. R. 437; Green v. State, M. S. Dec. T. 1880.

And while some of the cases follow the old rule first suggested, we believe, by a dictum of Lord Kenyon (4 T. R. 290), that the very language of the witness — ipsissimis verbis — must be given, the well settled opinion now obtains that the precise words need not be repeated on the second trial, but only the substance of the testimony given in the former trial. 1 Greenl. § 165; Wharton Am. Cr. L. § 667; State v. Hook, 17 Vt. 659; Kendrick v. State, 10 Hump. 479.

The rulings of the Circuit Court were without error in admitting the secondary testimony, given by Roberts, as to what Bedman had testified before the committing magistrate.

The record proceedings establishing the insanity of Bed-man were designed under the statute to be pro hac vice merely. They were improperlyFadmitted in evidence in this case, as defendant was no party to them, nor in any manner bound by them. They were entirely unlike an ordinary inquisition of lunacy, which is analagous to a proceeding in rern. being made on behalf of the public, so that no one can strictly be said to be a stranger to it. — 1 Greenl. Ev. 556; Code (1876), § 1488. The insanity of Bedman could be proved by any competent evidence satisfactory to the mind of the court.

The action of the Circuit Court created a severance in the cases of the two defendants, who were jointly indicted, and either was then a competent witness for or against the other. Code, (1876), § 4892 ; Clark’s Man. Cr. L. § 2402; Whart. Cr. Ev. §439.

There was no error in excluding the question propounded to the witness Holmes, whether he had not heard deceased make remarks derogatory to the character of Redman’s sister. It was clearly irrelevant, unless shown to have been communicated to Bedman, as a motive to the homicide other than the one upon which the theory of the prosecution was based. Nor is it made to appear what was the pertinency of the interrogatory propounded to Mrs. Marler, asking “ what reason ” Bedman, and his wife and sister, gave for returning from his father’s.

The Circuit Court erred, however, in giving the charge to which exception was taken. In order to authorize the conviction of a defendant for felony on the testimony of an accomplice, it is true that his testimony need not be corroborated in every particular. But it is not sufficient if it merely be so confirmed as to convince the jury it is true. It must be “ corroborated by other evidence tending to connect the defendant with the commission of the offense.” The statute does not permit a jury to be convinced by any other kind of corroboration. — Code (1876), § 4895; Smith v. State, 59 Ala. 104.

It was error, also, to exclude the evidence that Bedman had made threats against the deceased for talking about his sister. This would tend to prove that his conduct in killing deceased was dictated by his own personal malice, independently of the instigation of the appellant, Marler, and to this extent suggested a possible hypothesis inconsistent with his own statement.

The first charge requested by the appellant, and refused by the court, should have been given. The jury had no right to consider the merits of the divorce suit, but only the fact of its pendency and the motive of its prosecution. Nor did defendant’s failure to deny to Gilchrist that “ his wife was a good woman” affect the question of his guilt or iunocence.

A conspiracy to commit a crime can be established as well by circumstantial as by direct evidence. It is not necessary to prove a “ positive agreement,” as asserted by the second charge, nor to establish it “ outside and independent ” of the testimony of an accomplice. If the testimony of the accomplice is satisfactorily corroborated so far as his statement connects the defendant with the commission of the offense, it is a sufficient conformity to the statute. The second, third and fourth charges were properly refused.

The State was permitted to prove by Jacob Bedman, against objection, the fact that the prisoner, Marler, stated to him that “ he was tired of his wife, and intended to get a divorce from her, and he [Marler] wanted his [Bedman’s] permission to marry his daughter.” This was competent, we think, to prove motive. The deceased, Ur. Colquitt, was an important witness in the divorce suit instituted by Marler against his wife. The evidence tended to show that Marler’s imputed purpose, in his alleged complicity in the killing, was to get rid of deceased as an obstacle to his success in obtaining such divorce. This motive, if in fact it existed, was material to strengthen the probability of his guilt. If he wished to marry Redman’s daughter, this might intensify the desire for "a divorce, and this again tend to quicken eagerness to destroy the witness. For this reason the evidence in question was admissible, and the fifth charge requested by appellant was properly refused.

The sixth charge invaded the province of the jury, in assuming the right of the court to charge the jury that they “ must ” look to certain facts, as evidence to influence their verdict; and the seventh was not supported by the evidence, and being abstract, it was not error to refuse it.

There are several other minor exceptions to the admission of evidence, not necessary to be noticed, as they are not likely to arise again in a new trial.

The judgment of the Circuit Court is reversed and the case remanded. And, in the mean while, let the prisoner be retained in custody until discharged by due course of law. ■