Wigginton v. State , 205 Ala. 147 ( 1920 )

After holding that the objections taken by the defendant to the testimony offered by the state for the purpose of laying a predicate for the introduction of testimony of the absent witness Graham, given on the preliminary trial of the defendant, were unavailing because they did not point out any infirmities in the testimony, the Court of Appeals, rejecting a part of the testimony offered for that purpose, holds that what remained was not sufficient to constitute a predicate on which the testimony of the absent witness could be received.

If the testimony adduced to establish the predicate was admitted without error, though its admissibility might have been challenged on grounds not urged, all the testimony going to establish the predicate should have been considered by the court. Sterne v. State, 20 Ala. 43; Billingsley v. State,96 Ala. 126, 11 So. 409; Hays v. Lemoine, 156 Ala. 465,47 So. 97.

The question presented by the objections as to the sufficiency of the predicate — and we hold that either of the grounds stated were sufficient for that purpose — is, after making proper allowance for the finding of the trial court: Does it sufficiently appear that the proposed testimony was given by the witness under oath on the preliminary trial of the defendant for the offense for which he is now being tried before a magistrate of competent jurisdiction, where the right of cross-examination was afforded, and that the whereabouts of the witness was unknown and his testimony at first hand unobtainable by due diligence? Pope v. State, 183 Ala. 62, 63,63 So. 71; Pruitt v. State, 92 Ala. 43, 9 So. 406; Chamberlayne's Handbook on Ev. § 264. If these facts appear, the testimony on the former trial was competent. If this predicate was not established, the testimony was not admissible.

The writ of certiorari will be granted. The judgment of the Court of Appeals will be reversed, and the cause remanded to that court for further consideration.

Writ granted.

All the Justices concur.