Sanders v. State , 105 Ala. 4 ( 1894 )

McCLELLAN, J.

It is entirely within the discretion of the trial cout to permit a witness who has been put under the rule, and has violated the injunction of the court in respect of talking about the case, to be examined notwithstanding such infraction of the rule ; and we will not revise the action of the criminal court in allowing the witness Parsons to go on the stand and testify against the objection of the defendant based upon the fact that he had talked with one Penn while under the rule as to what his testimony would be in the case, and had sent a message by Penn to the solicitor indicating what he would swear.

After the court had passed upon defendant’s objection, overruling it, and the witness was on the stand solely for the purpose of giving testimony not on the objection, but upon the case itself, and not to the judge but to the jury, the solicitor asked the witness: “What did you tell Penn to tell me?” And the witness was allowed, against defendant’s objection, to answer this question, saying that he had told Penn to tell the solicitor that he, Parsons, would testify if put on the stani that the deceased refused to swear to the statement that the shooting [of him by the defendant] was accidental. And the witness was then further examined by the solicitor, and testified that “on the night the deceased was shot, he with defendant and others went to where deceased was, and he said the shooting was accidental, that they could fix the trouble up when he got better, that he, witness, went immediately for a justice of the peace to have deceased swear to th'e statement, and that the justice came and deceased said he would not swear that it was accidental because he might swear a lie.” It is clear, we think, that the only possible effect of proving the message sent by Pai’sons to the solicitor was to strengthen the evidence given on the stand, that deceased refused to swear to the statement in question, by proof of mere declarations of the witness made out of court to the same effect. The case is the same indeed as if there had been no objection to Parsons’ testifying, and the solicitor, after drawing from him the statement that the wounded man had refused to swear that the shooting was accidental, had sought to elicit further that he, the witness, had previously declared to one or more persons that the deceased had so refused. And this would be not less violative of law than to prove by third persons this declaration of Parsons whether he was put on the stand as a witness or not. The trial court erred in permitting Par-sous to state the message he sent to the solicitor. "We deem it proper to remark in this connection that had the declarations of the wounded man offered by the defendant, to the effect that the shooting was accidental, been objected to they should have been excluded, but being adduced without objection we treat them on this appeal as competent evidence.

Notwithstanding the evidence at the preliminary hearing was reduced to writing and was available at the trial in the criminal court, it was necessary for the solicitor to ask the witness whose testimony on the final trial he sought to impeach, by proof of contradictory or inconsistent statements on the preliminary trial, whether he made the statements in question : impeaching evidence could not be offered until this predicate was laid for it; and the witness himself admitting the previous statements inquired about, it was wholly unnecessary to introduce the written evidence to prove that he made them. The court, therefore, committed no error in its several rulings relating to the impeachment of the witness John Hill.

All the charges requested by the defendant were well refused on the authority of Johnson v. State, 94 Ala. 35; some of them are faulty without reference to the principle declared in that case. The jury might have found that the shooting was accidental, and yet have also believed that the fatal shot was fired by the defendant in the course of the unlawful act of presenting a gun at the person of the deceased. — Acts 1888-89, p. 67.

Reversed and remanded.