Boulden v. State , 102 Ala. 78 ( 1893 )

I-IEAD, J.

With the view of proving the dying declarations of deceased, the State asked its witness, Banks, “What did the deceased say about whether or not he thought he would get well?” The defendant objected, on the ground that the evidence showed that deceased did not die for nearly two months after the wound was received, and that it was too far from the time of his death to be received as a dying declaration. The objection was properly overruled. — Reynolds v. State, 68 Ala. 502; 1 Green. Ev., § 158. It is true there was no evidence, so far as the bill of exceptions shows, (and it purports to set out all the evidence), showing what relation the statement made by the deceased, in reference to getting well, bore to his declarations touching the facts of the homicide. Without such proof the declarations were inadmissible ; but no question was raised by the defendant on this point.

The dying declarations were reduced to writing at the time they were made. The court permitted oral evidence of them to go to the jury without the production of the writing, to which the defendant excepted. Witness Banks, who testified to the declarations, and that they had been reduced to writing, was asked by the court where said dying declaration was? He replied, that he had turned it over to the grand jury of the city court at the June Term, 1893, and had never seen it since ; that he had made diligent search among all of his own papers and had failed to find it, and .that he, together with the solicitor and clerk, made diligent search through the grand jury papers and failed to find it. Upon this predicate, the court admitted the secondary evidence. We think the predicate was insufficient. It is of the highest importance, particularly in a cause involving such consequences as this, when important evidence exists in writing, that the writing itself be produced ; and its production should be required, if, by any means, it is practicable. Every reasonable effort which it appears might have resulted in its production should be shown to have been made, without avail, before secondary evidence should be received. The reason of the rule is too obvious to require elaboration. The production of the writing, in the present case, rather than proof of the dying declarations by the possibly uncertain and inaccurate memories of witnesses, may have been of the last importance to the prisoner. The witness makes the indéfinite statement that he turned the paper over to the grand jury. Just how he did so, is not stated. The grand jury was composed of at least 15 men. It does not appear what member of that body received the paper, and, of course, he was not called to testify what he did with it, and no reason was shown why he was not. The next, and only other evidence, is the statement of the witness that he, with the solicitor and clerk, made diligent search “through the grand jury papers,” and failed to find the paper. Where these papers were when examined, how they got there, in whose custody, how long they had been there, and how the witness knew they were grand jury papers, do not appear. There is not an intimation that the search was made in the place where the papers which went into the custody of the grand jury, at the June Term, 1893, were usually kept and ought to have ■been found, even if that evidence had been sufficient. Indeed, it does not appeaf that the witness knew, or could know, except from hearsay, whére those papers were usually kept; or that he was capable of identifying them as the papers of the grand jury of the June Term, 1893. He was a magistrate, living in the country, and had nothing to to do with the custody of the grand jury papers, and no connection with the clerk’s office. It is manifest lie knew nothing about them. The clerk, who is presumed to have been in the court house, was not examined on the subject. It would be idle to contend that such evidence as this shows the exercise of that degree of diligence sufficient to let in secondary evidence.

It is common, and we think allowable, practice to inquire of witnesses, on cross-examination, if they have talked with others in reference to the facts of the case; not as a means of impeaching the character of the witness but of testing the accuracy or reliability of his recollection. If a witness’s memory has been refreshed before going on the stand, by having the facts rehearsed to him by others, we think the jury ought to know it, that they may consider it for what it appears to be worth, in determining how far the recollection of the witness is reliable. Hence, if the wife of the deceased, who was in the court house, rehearsed to the witness Banks, before he went upon the stand, the alleged dying declarations of hér husband, the defendant should have been permitted to prove the fact, on cross-examination of Banks, as he proposed to do.

It was immaterial who swore out the warrant for the arrest of defendant and Dymus Todd.

It was a theory of the State, having some support in the tendencies of the evidence, that the defendant and others went to the place of the difficulty that morning to resist, with violence, .if necessary, a claim of deceased and others to the lumber that was there, in pursuance of which the difficulty and homicide occurred. This being so, we think it was competent for the defendant to testify, in his own behalf, that, at the time of the difficulty, he did not know of any claim of any person to the lumber.

We see no objection to the first, second and. third charges given for the State.

The fourth charge given for the State correctly places the burden of proof touching the duty of retreat, and was properly given.

The fifth charge correctly defines malice, in its legal sense, and was properly given. — Clark’s Manual Or. Law, p. 75, §470 and cases cited ; Roscoe’s Or. Ev., (7th Ed.) p. 21, Broom’s Legal Maxims, top p. 315.

The sixth charge substantially hypothesizes the characteristics of murder in the first degree as defined by the statute. — Code, § 3725. It requires, in order to constitute that degree of murder, that the homicide be purposely committed, after reflection, with malice, and that it was determined on before hand. These are the equivalent of the wilfullness, deliberation, malice and premeditation which the statute requires.

Charges 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 21, requested by the defendant, are so obviously erroneous or improper, upon principles so often declared by this court, that we deem it unncessary to consider them in detail. Some of them require an acquittal entirely, upon facts which would justify an acquittal of murder only. The indictment involved the charge of manslaughter as well as murder.

Charge 20 was abstract and properly refused. This is not a case, as the charge supposes, without proof of the character of the knife, flhe jury were informed of the nature of the wounds inflicted upon the deceased with the knife, and they could infer its character from this evidence.

Charge 22 is so drawn that it was, if given, liable to confuse and mislead the jury. It was properly refused.

Charge 7 is more calculated to confuse than to instruct, and was properly refused.

The questions reserved touching the organization of the jury will not likely arise on another trial, and we do not consider them. Reversed and remanded. Let the prisoner remain in custody until discharged by due course of law.