Jernigan v. State , 81 Ala. 58 ( 1886 )

STONE, C. J.

— In accounting for the absence of a writing, material testimony in the cause, so as to let in secondary evidence of its contents, no universal rule can be declared which will be applicable to every case. The testimony is addressed to the presiding judge, and he pronounces on its sufficiency. He must be reasonably convinced that it has been destroyed, is lost, or is beyond the reach of the court’s process. A material inquiry in such cases is, whether or not there was a probable motive for withholding this highest and best evidence. Whenever the court is able to answer this inquiry in the negative,• less evidence will satisfy its conscience, than if suspicious circumstances attended the transaction. As a rule there must be careful search at the place at which it was last known to be, if its place of custody can be traced or remembered. If not, then such • search must be made at any and every place where it would likely be found.

It is not denied that in this case diligent search was made for the missing papers, at the place at which the testimony tends to show they were last seen. The search was made by three acting together, and on two separate occasions. The papers were not found. The objection to the preliminary proof of loss is, that only one of the three who made the search, is produced as a witness. The other two are shown to have been in the State, but in counties distant from the scene of the trial. The search appears to have been carefully made, and there is an absence of proof of fact or circumstance, tending to show a motive for withholding these papers. We think the proof of loss was sufficient to let in the secondary evidence. — Beard v. Ryan, 78 Ala. 37; 1 Greenl. Ev. § 558 and notes; Foster v. Mackey, 7 Metc. 531; 1 Brick. Dig. 818, 632 to 631; Donigan v. Wade, 70 Ala. 501.

If the testimony of Dr. Thomason, as offered, was shown to have related to an interview had before the present prosecution was commenced, the question would be different from its present presentation. We need not and do not declare what would be our ruling on such question. The record, however, is silent as to the time it occurred. We can draw no inferences against the court’s ruling, but must so interpret the record’s silence, as to affirm rather than reverse the judgment of the circuit court. Under this rule, there can be no question that the evidence was properly excluded. This was not a suit between Nix and the defendant. The State was complaining that the criminal law had been violated. The unsworn admission of the prosecuting witness, even if expressly made, can not be received as evidence in disproof of any fact the State was required to prove, and was attempting to prove against the defendant. On laying the proper predicate, such contradictory statement or admission might possibly be used to discredit'the witness, but it was lawful for no other purpose.

The remaining questions raised by this record are ruled against the defendant in Varnum v. The State, 78 Ala. 28. .

Affirmed.