Lucas v. State , 96 Ala. 51 ( 1892 )

COLEMAN, J.

The defendant was indicted for burglary of a railroad car, and in the second count for larceny from a railroad car. He was convicted on the second count.

At a preliminary examination of the defendant, Dock Tilly was examined as a witness by • the State, and his testimony reduced to writing. On the trial after the indictment,'Dock Tilly" was absent, and against the objection's of the defendant, his testimony given on the preliminary examination was admitted against him.

The rule in such cases is, that if a witness dies, or becomes insane, or has gone beyond the jurisdiction of the State. permanently, or for such an indefinite time that his return is merely contingent or conjectural, the testimony of such'-witness may be proven on a subsequent trial. — Pruit v. State, 92 Ala. 41; 1 Greenl. Ev. (14 Ed.) § 163 and note; Lowe v. State, 86. Ala. 52; South v. State, Ib. 617; Perry v. State, 87 Ala 30. The predicate for the introduction of the testimony of Dock Tilly, the absent witness, did not 'comply with the rule as here declared, and was insufficient. The preliminary proof simply shows' “that several months ago said Tilly was seen at work in Atlanta, Georgia, where witness himself was. at work, and had not been seen since; did not know where Tilly was nor where his home was, nor how long he worked in Atlanta. He had also seen him at work inHirmingkam, Alabama, in September, 1891, repairing telegraph lines with witness -at the time the larceny was committed.” This proof is short of the requirement'of the rule. It does not show that the absent witness had either gone beyond the State ■ permanently,. or for an indefinite time. It is as presumable from the facts stated that the home of the absent witness was in Alabama as that it was' in Georgia. There is no proof that a subpoena was issued for him or any exertion made to find him, or any proof that he.was not at the time of the trial within the jurisdiction of the-State. The court erred in admitting the testimony of the witness Dock Till y,- given by him on the former trial.

The indictment does not follow the form prescribed for such cases in the Code. It simply charges the larceny of a watch. According to the prescribed form for an indictment under the section of the Code under which the indictment was framed, the watch should have been more accurately described, as a “gold watch,” or “a silver watch.” It is better.to pursue the forms prescribed by statute.

There is also' an entire absence from the bill of exceptions ■ of proof of value. The section, 3787 of the Code, makes the stealing “of any personal property of any value from a railroad car” grand larceny, but there should • be some evidence of value before the jury.- — Shepherd v. State, 42 Ala. 531. We can not tell from the evidence set'out in the record, upon what data the jury assessed the ■ value at twenty-five dollars. There was- no error in the refusal to give the charges requested by the defendant.

Beversed and remanded.