Lovejoy v. State , 32 Ala. App. 110 ( 1945 )

BRICKEN, Presiding Judge.

Originally this appellant (defendant) was indicted for the offense of murder in the first degree; and, upon trial was convicted of murder in the second degree, which verdict of the jury, and the judgment of conviction operated as the acquittal of the defendant of the offense of murder in the first degree.

The appeal from the judgment of conviction, above referred to, resulted in a reversal thereof, and a remandment of the cause to the court below by this court. Lovejoy v. State, 31 Ala.App. 244, 15 So.2d 300.

When .the case was again called for trial in the lower court, the attention of the court was called to the fact that the defendant had been acquitted of the offense of murder in the first degree on former trial; and defendant asked the court to take judicial knowledge of this situation, and that he be placed on trial only for murder in the second degree, or offense below murder in the first degree. The court ruled that no judicial notice would be taken of the record of the court in the same cáse and in the same court, but that the defendant must file his plea and that the burden of proving that plea rested on him before the jury. To this action of the court defendant duly and legally reserved an exception.

While it was the province of the jury to pass upon the plea of former acquittal of murder in the first degree, the only fact necessary to be submitted to the jury on this question was that the allegation or averment of the plea to this effect was true, and as to this there was no dispute or conflict. This fact the trial court judicially knew and it was the duty of the court to affirmatively instruct the jury accordingly. The court, as stated, declined to do so, and erroneously required the defendant to introduce the minutes of the court which disclosed the conclusiveness of the plea but also went further and informed this jury of the extent of the punishment imposed by the jury on the former trial and as to this it was no concern of the jury and was of necessity highly prejudicial to defendant.

It is axiomatic that courts judicially know their own records. 9 Alabama Digest, Evidence, <§=» 43(2).

We are not impressed with the insistence that no injury resulted from the ruling and action of the court under discussion. This jury as a result of the court’s ruling were, as stated, informed of the fact that the jury who tried this same case before had fixed the punishment at imprisonment for twenty years. This jury did likewise and fixed the same penalty of twenty years. The significance is apparent.

There appears merit in the contention of appellant’s earnest counsel wherein the following appears in brief:

“After the jury, under the plea of former jeopardy, had heard the record of conviction and the assessment of the penalty on the former trial, the defendant should have been entitled to strike from another jury and should not have been forced to go to trial before the same jury immediately after having been forced upon the trial of the plea of former jeopardy to offer the complete record. This was violative of the defendant’s constitutional right to trial by an impartial jury. It is the purpose of these guarantees to preserve the substance of that right to defendant. 31 Amer. Jurisprudence, page 559, sec. 9.”

The next point of decision to be considered is the exceptions reserved to the rulings of the court in not allowing, or permitting, defendant to introduce upon this trial the testimony of defendant’s witness, Bennie Rutledge, who was absent from the State at the time this case was called for trial. A subpoena had been ordered for said witness, but had not been served and was returned “not found.”

The record in the case shows that the testimony of said witness Bennie Rutledge, taken on a former trial, was most material. He had been sworn as a witness, examined and cross-examined and his testimony reduced to writing and the record of the same was in court admitted by the Solicitor to be correct and the court reporter who took the testimony was there ready to verify the same. This witness was admitted to be in the armed services of his country and this put him beyond the jurisdiction of the court. In time of actual war he was not subject to the process of the court; and whether or not a subpoena could have been served upon him had he been in this country, there was no way for the court to enforce his attendance. However, the defendant was in possession of a V-mail letter written by this soldier to his sister, which letter was asking her to see about the care of his child. This letter was clearly admissible and the .insignia, number and pass by censor on the same together with the fact that it was a V-mail showed conclusively that this soldier was overseas. There was evidence that he had disappeared from his home here and had not been seen and that he was in the army.

In this situation the testimony given by this witness under oath on a former trial where he had been examined and cross examined was clearly admissible and was most vital to the defendant’s case. The court refused to admit the V-mail letter or to consider the same, to which exception was duly reserved, and sustained the objection to the admissibility of Bennie Rutledge’s testimony. The court not only would not admit the testimony, but would not permit the defendant to show that it was impossible to have Bennie Rutledge served with subpoena; and refused to admit letter which would have been proof of his being overseas.

Former evidence of witness is admissible where apart from other requisites the party against whom the evidence is offered had an opportunity to examine the witness at a former proceeding. 23 C.J.S., Criminal Law, p. 128, § 996; Baldwin v. U. S., 6 Cir., 5 F.2d 133; Id., 269 U.S. 552, 46 S.Ct. 17, 70 L.Ed. 407; Wiggington v. State, 205 Ala. 147, 87 So. 700; Bridges v. State, 26 Ala.App. 1, 152 So. 51.

It was shown by the transcript, that after admissions in the' evidence were tendered and not permitted the defendant’s counsel stated: “Now we offer the testimony of the defendant’s witness, Bennie Rutledge, taken in the former trial, examination by the defendant, cross-examination by the Solicitor on the theory that the said Bennie Rutledge is now in the army and beyond the jurisdiction of this court and not available to be brought here as a witness by any process of this court.” The Solicitor stated: “We object to the introduction of the testimony on the ground it is not proven he is beyond the jurisdiction of the court, nor is it proven or offered to be proven that he attempted to take his deposition in this case as permitted by law, and that it is not proven or offered to be proven that he is permanently beyond the jurisdiction of this court, and that it does not show he was served as a witness.” The court sustained the objection, the defendant then and there duly excepted.

It will be noted that the grounds of the objection was that the deposition had not been taken. Here was testimony of the witness taken in open court on the former trial duly sworn, examined and cross examined and his evidence reduced to writing by a court reporter and admitted to be a correct transcript of his testimony.

As to whether the witness was beyond the jurisdiction of the court, he was certainly in the armed services; that was admitted and showed conclusively he was not available to the process of the court even if a subpoena could have been served upon him, and his attendance could not have been compelled. There was much evidence to show that he was beyond the jurisdiction of the court. The court should have taken judicial notice of the fact that the V-mail letter is used in the armed services only for overseas personnel. This V-mail letter was offered, coming back to the home of Bennie Rutledge to his sister to the place where he lived and asking about his child. There was other evidence corroborating this. As we see it, no better proof could have been offered showing that the witness was beyond the jurisdiction of the court.

The objection took the ground that it was not proved he was permanently beyond the jurisdiction of the court and that he had not been served as a witness. It appears he could not have been served under the circumstances, as he had disappeared and he could not be found in his former environs; he was admitted to be in the army, and he was shown to be overseas.

Evidence of a State’s witness taken on a former trial can be offered in evidence by the State over defendant’s objection. It has been held that where the witness who testified on a former trial, with full opportunity for cross-examination and when called upon to testify on later trial, rendered himself incompetent as a witness without fault on the part of the State by claiming his immunity under the incriminations law, the court properly allowed the testimony on the former trial to be read in evidence. Woodward v. State, 21 Ala.App. 417, 109 So. 119; McCoy v. State, 221 Ala. 466, 129 So. 21.

It has been held that in laying a predicate for testimony of witness in a former trial, or for the admission of such testimony, evidence to the effect that the witness had on a uniform of the army and that his foreman had read a letter written 'by the witness and mailed in France was sufficient predicate for introduction of the testimony of the witness given at a former trial. Hardaman v. State, 17 Ala.App. 49, 81 So. 449; Tyra v. State, 17 Ala.App. 92, 82 So. 631; Adkison v. City of Andalusia, 22 Ala.App. 131, 113 So. 469.

Also, if a witness had been examined in a former criminal case before a competent tribunal and subsequently dies, or if not dead, becomes insane; or if after diligent search he is not to be found within the jurisdiction of the court, or if that which is equivalent be shown, that he has left the state permanently or for such an indefinite time that his return is contingent and uncertain, it is admissible to prove the substance of the testimony he gave formerly. Mitchell v. State, 114 Ala. 1 and 2, 22 So. 71. Error prevailed in these rulings.

As stated hereinabove this case has been considered and determined heretofore by this court. Of this we take judicial notice. On this appeal appellant has assigned errors, 238 in number. We adhere to what has already been said by this court on former appeal and conclude that our opinion has considered and decided all salient points of decision raised in said assignment of errors, other than those which have been hereinabove discussed. Hence there is no necessity to prolong this opinion by further discussion.

For the errors indicated, the judgment of conviction from which this appeal is taken is reversed and the cause remanded.

Reversed and remanded.