McMunn v. State , 113 Ala. 86 ( 1896 )

MoOLELLAN, J.

The evidence adduced on the inquiry whether Vail and his wife were permently or indefinitely absent from the State at the time of the trial was insufficient to establish a predicate for the admission of their testimony given before and taken down by the committing magistrate. For the State it was substantially to this effect: These witnesses said at the time of their preliminary trial that “when at home, they lived in Ohio.” They at that time had no home in Alabama, but were camping out in the suburbs of Huntsville. A subpoena for them was sent to Limestone county and returned “not found.” A subpoena issued also to the sheriff of Madison county, and was returned “not found;” but the officer testified that he looked and inquired for them in only two or three precincts of the county. The sheriff had also made hasty inquiries for them at several railway stations in two or three counties west of Madison. This was done during the brief stops of the train on which the officer was travelling at such stations. These inquiries were fruitless. Vail said if he did not settle in Alabama, he would go to Georgia where his partner lived ; but he left Huntsville, and when last seen by any of the witnesses was going in the opposite direction. On the other hand, the evidence on the part of the defendant showed that Vail first came to Madison county some time before the fall of 1895, prospecting for a homo. He expressed himself as pleased with the country, and said that he was coming here from Ohio to live. In the fall of 1895 he did return to Huntsville, travelling in a wagon, with a camping outfit, bringing his wife and children, and also some poultry, household goods and mules -with him. While at Huntsville he stated to several persons that he had come to this State to live, and that he was going to buy land in Madison county. On leaving Huntsville, Vail went in the direction of Madison station. His wife and children and some household goods were in the wagon, a coo^) of poultry was strapped on the rear end of the wagon, and a mule was being led behind. To a witness who met him just before he reached Madison station he said he was going down near Swancott to look at some property. This witness further stated that Vail made the impression on him that he intended to settle in Madison county. To another witness, Vail stated that he intended to go into the neighborhood of Madison Cross-roads, and rent some land there. It does not appear that any inquiries were ever made by the officers or others for him in that neighborhood. Vail’s statement that when at home he resided in Ohio was a natural one for a man to make who had given up his home there, but had not acquired one elsewhere. It could not be reasonably said to mean other than that he was from Ohio. His wife put the statement in that form. She said : “We are from Ohio.” The other evidence to which we have alluded shows clearly, we think, that they had come here to live. It is not probable they would come all the way from Ohio in a wagon,bring household effects, poultry and live stock and pay a social visit to strangers. They were not merely prospecting and intending to settle here if the country suited them. The head of the family had already seen the country and announced his purpose to return and live in it. And what evidence is there that they did not carry out this deliberate purpose which they had come hundreds of miles to execute? Only this, that the sheriff failed to find them in Limestone county, upon what effort does not appear, and the sheriff of Madison county had failed to find them in either one of three beats in that county to which his effort was confined to the exclusion of another precinct wherein they had expressed an intention to rent land and live ; and had failed to hear of them in response to the hasty inquiries,before referred to, made at some stations on a railway running through that section of the State. This is wholly insufficient. Por aught the evidence shows to the contrary these witnesses may well have been residing in any one of the numerous other precincts of Madison county at the time of the trial; and it is highly probable that they were residing there or elsewhere in that region of the State in consonance with the purpose which brought them from Ohio. It was, we conclude, not shown with reasonable certainty that these people were absent from the State when this case was tried, permanently or otherwise ; the defendant had a constitutional right to be confronted by them as witnesses, and the action of the court in admitting their former testimony was erroneous, and must work a reversal of the judgment.

The testimony of Wm. Mitchell, that he looked for the defendant for three days when trying to arrest him for stealing Vail's watcli, should not have been received. Its purpose, we suppose, was to show that defendent coir cealed himself from a consciousness of guilt; but standing alone it has no legitimate tendency in that direction.

The other rulings of the court to which exceptions were reserved are free from error.

Reversed and remamded.