Scaggs v. State

Thacher, J.:

This was an indictment for murder, preferred in the circuit court of Itawamba county.

An inspection of the record presents to view several irregular proceedings, but it becomes unnecessary to remark at length upon them all, for the purpose of the present decision of this case, or its future progress.

The error which first protrudes itself to notice is the circumstance, that it does not appear that the prisoner was present during the whole of the trial of the indictment. The only evidence of his presence at all, is contained in a bill of exceptions, where he is stated to have asked some questions of a witness, but he does not appear to have been confronted by the witnesses against •him, which was his constitutional right. Const. Art. 1, §10. It must appear in this class of crimes, that the accused was present during his trial, or it will be error. The presence of the prisoner cannot be inferred, but must appear affirmatively, and. for all that appears in this record, the questions directed to the witness by him, might have been propounded in writing.

In view of a future trial, an observation is called for upon an-i other point insisted upon for the plaintiff in error. In the examination in chief upon the trial, a witness for the state deposed that on the day upon which the crime is charged to have been committed, he met the accused a half a mile from his house, and that he had blood upon his hands ; and that upon cross examination, the witness stated, that the accused was coming from his own house at the time spoken of, and directed his attention to the condition of his hands. The court thereupon refused, upon a question on behalf of the accused for the purpose, to permit the witness to state what the accused said when he showed the blood upon his hands. This statement was properly rejected. It was not sought to be let in as a part of a confession, and it could not be admitted as a part of the res gestae or transaction. Declarations are admitted in evidence as part of the res gestae, only upon the presumption, that they elucidate the facts with which they are connected, having been made without premeditation or artifice, and without a view to the consequences.^* Stark. Ev. 1, 49. It was the accused who called the attention of the witness to the blood upon his hands, and it was reasonable to presume, that he had premeditated his explanation of its cause, when it was also shown that he was half a mile from the spot ivhere the crime was alleged to have been committed, and had sufficient time to determine upon the explanation he would give concerning the circumstance. The explanation, it is true, might have contained nothing but the truth, but it was not of that impulsive character, which distinguishes declarations at the time of the transaction. To have permitted the question to have been answered, would not have been short of permitting the defendant below to make evidence for himself. The State v. Slack, 1 Bailey, 330.

The judgment of the court below is reversed, and the cause remanded for a venire de novo in this court, for the purpose of a new trial.

* State v. Hildreth, 9 Iredell, 140; State v. Scott, 1 Hawks, 24; Campbell v. State, 23 Ala., 44; State v. Tilley, 3 Iredell, 424; Gardner v. People, 3 Scam., 83; Bland v. State, 2 Carter, 608; 1 Arch., Cr. Pro. and Pl., 429; Newcomb v. State, 37 Miss., 333; Corbett v. State, 31 Ala., 329; Tupper v. Commonwealth, 1 Metc. (Ky.), 6; Golden v. State, 19 Ark., 590; State v. Jackson, 17 Mo., 544; Bland v. State, 2 Carter, 608; State v. Wisdom, 8 Porter, 511; Wharton Am. Cr. Law., 699.