CAMPBELL vs. THE STATE, 23 Ala. 44

CHILTON, C.

J. ’The record presents a number of exceptions to the rulings of the presiding judge with respect to the admission of evidence, and as the statute makes it our duty to examine the entire record, and to notice errors, if any have intervened, whether assigned for error or not, it will, perhaps, facilitate Our inquiries to take them up in the order in which they are stated in the bill of exceptions, premising, that it would render this opinion too prolix to elaborate the several points which are raised, and that, while wo trust we have given to each the consideration which the importance of the case de-' mands, we must be content to state our conclusions, and omit the reasons in many instances upon which they rest.

Joseph C. Street was allowed to give “ his opinion” as to the time of day the prisoner left Centre, the witness stating that he had no time-piece. This evidence was admissible.— Every person of ordinary perception and observation, must be regarded as capable of giving an opinion upon a matter of this nature — a matter upon which every man’s knowledge and experience are supposed to qualify him to approximate a correct conclusion. We apprehend no case can be found asserting a different doctrino. Indeed, we know of no case where the point was ever called in question, and yet it is one involved in almost every trial.

The same principle covers the objection to the witness’ testifying as to the length of time the prisoner was absent from Centre, the witness having seen him when he left and when he returned. The shoes of the horse which the prisoner rode were taken from his fore feet, the horse having no shoes on his hind feet, and were applied to the track leading from Centre to Mrs.

Covington’s, in the direction of where the body of the deceased was found ; and a witness who saw them thus applied, was allowed to depose that “ they seemed to fit in every particular.” The prisoner’s counsel contends, that, before this could be made legal evidence, it must be shown that the shoes fitted the horse’s foot. This was a circumstance, doubtless, about which he might well have cross-examined the W'itncss, to ascertain whether the shoes fitted the indentation made by the horse’s hoof, or by the shoes in the earth.

In the absence of proof to the contrary, we must presume that, in fitting the shoes to the tracks, they were applied to the tracks which the shoes made ; and in this view, the proof was not only legal, but constituted a circumstance which might become of importance in pointing out the rider as the guilty agent. Asa Allen, the proprietor of the tavern from which the prisoner'started in Centre, was allowed to testify that the prisoner “occasionally visited his house, but not as often as others.” This was objected to as irrelevant.

It is certainly the duty of the judge to confine the evidence to the points in issue, that the attention of the jury may not be distracted and led off from them, nor the public time needlessly wasted; but in cases like the present, depending upon' circumstantial evidence, it often becomes a most embarrassing question to determine what circumstance is too remote to admit of any reasonable direction to the jury, in arriving at a conclusion upon tlie main point of inquiry.

It seems to be well settled that, if no presumption to be drawn from the circumstance offered in evidence ought properly to have any weight upon the minds of the jury, the court should exclude it. — 1 Phil. Ev. (B Ed.) 460. Circumstances may be minute, and, considered separately, of very little importance, shedding but a dim ray of light upon the transaction sought to be elucidated; yet, when grouped together and considered in the aggregate, they may constitute a chain of evidence which draws the mind to a very satisfactory conclusion. An illustration of this is furnished by the case of Mendum v.

The Commonwealth, 6 Randolph’s Rep. 704. The defendant was indicted for murder, committed by stabbing with a dirk. It appeared that a dirk without a cap had been found secreted near the place of the murder; and the cap of a dirk, engraved J, H., was handed to a witness, by a negro, a mile and a half from the place, but how the negro came by it no one could tell. The handle was engraved with the letters J.

H.; and it appeared that some 16 or 17 years before, a witness purchased a dirk, with this engraving, for -James Hickman, the half brother of the prisoner; that Hickman had since died, and the prisoner had admitted that a dirk was the only part of Hickman’s property he had received. The witness who heard him make this admission saw a dirk in his hands, with J. H. engraved on the handle, but could no farther indentify it with the one now-produced. The dirk found secreted was, from its general appearance, indentified as the one produced on trial, and the cap produced by the negro apparently fitted the handle.

The prisoner had, before the murder, lent a dirlc, not indentified on the trial, which was returned to him before the murder was committed. There was no proof that the prisoner had ever been at or near the place of the murder.— These circumstances were allowed to go to the jury, as evidence that the dirk found belonged to the prisoner, and they were told that, if they had no doubt of its being his 'property, then the prisoner’s dirk so found made one circumstance to be weighed with others.

The annotators upon Philips, (Cowen & Hill, 3 Ed., vol. 4, p. 598, n. 307,) in commenting upon this case, say: “Now it is obvious how perfectly slight, and utterly inconclusive, any one, or any two or three, of these circumstances must have been; yet all being combined, the result of the trial (a verdict of guilty) shows that the jury felt safe in acting upon them, as leaving no doubt.” So, also, the conduct of the prisoner, his situation and locality, the opportunities he had of knowing when the deceased left the school, and whether his being found in that position at that particular time was or not an unusual occurrence with him, are all circumstances very weak in themselves, yet not so wholly foreign from the main inquiry as to justify their rejection.— “ Every thing calculated to elucidate the transactions is admissible, since the conclusion depends upon a number of links, which alono are weak, but, taken together, are strong and able to conclude.”—McCann v.

The State, 13 Smedes & Marshall 471. “ Presumptions from a • man’s conduct,” says Mr. Russell, (7 Amor. Ed., vol. 2, p. 72,) “operatein the nature of admissions ; for, as against himself, it is to he presumed that a man’s actions and representations correspond with the truth.” — See also 3 Stark. Ev. 26. Tested by these rules, it is clear the proof made by Asa Allen was proper, as it tended to show whether the defendant, in being at his tavern near the court-house, on the Sunday morning of the murder, was in an unusual place. That it may have been exceedingly weak, matters not.

It wa.s not wholly foreign from the case, but tends, though remotely, to elucidate it. The prisoner was seen on Tuesday morning after the murder, by a witness named Coggins, coming from the direction of the residence of a Mrs. Matheny, where the witness had fre-i quently seen him on previous occasions. Mrs. Matheny, it appears, did not reside in the neighborhood of the prisoner. She .lived with her daughter Jane, an unmarried woman who had two children, without any other person in the family.

Coggins testified that he had seen the prisoner there one morning before the Tuesday spoken of, shaving and putting on clean clothes ; that on the Tuesday evening after the murder, while the elder Mrs.

Matheny was at his house weaving, he called at her house to get a drink of'water; found no one there but Jane; she showed him a man’s shirt having á neat linen bosom; that there were splotches on the bosom, three or four small stains about the size of a grain of corn, which looked more like the stains from chesnut timber than anything else the witness could compare it to ; that there was also a splotch on the cuff of the right sleeve about the size of a half dollar.

It was the only garment being washed which he saw; that Jane put some soap on it, and hung it on a chair ; that no man lived about the house, and witness knew of no man in that neighborhood who wore so fine a shirt. The witness was asked, if any person inquired of him if he knew what would take stains out of shirts 1 to which question the prisoner objected, but the court permitted the witness to answer, that the question was asked him, and to give his reply as to what would do it, and . the defendant excepted.

He also moved to exclude from the jury all the witness had said with reference to the shirt and the stains upon it, but the court refused to do so. The prisoner’s counsel insists that this proof was irrelevant. It appears that, after this proof was allowed, Jane Matheny was introduced by the prisoner, and her testimony conduced to show that the shirt spoken of by the witness Coggins, belonged to the prisoner, which proof was elicited upon cross-examination on the part of the State.

It is frequently difficult to ascertain, a priori, whether proof of a particular fact will or will not become material; and it is usual in such cases for the court to allow the proof, upon the assertion of counsel that the fact offered to be proved will turn out to be material.—4 Phil. Ev., C. & H., n. 301, p. 598, 3 Ed.; or that some other fact, -upon which its relevancy may depend, will, in due time, be proved.

In such case, if the subsequent proof 'is not made, the court will exclude that dependent on it ■from the jury. “ But it is different, however,” say the annotators above referred to, “where the proof tends apparently, in its own nature, to make out the case, though the residue be not offered.” We should be strongly inclined to hold that, aside from the evidence subsequently made by Miss Matheny, tending to connect the prisoner with the shirt,. the proof was properly received.

He was frequently seen at this house — was seen that morning going from the direction of it; no male person resided there; and he had been seen to change his clothes there on a former occasion; — the shirt was being washed, and the inquiry as to wrhat would take out the stains, but seemed to call the witness’ attention more particularly to them; and being connected with the possession and washing by Jane, formed part of the res gestee.

We, as we have intimated, think it may well be questioned whether this proof was not proper for the jury, had no other evidence of the ownership of the garment been introduced; but we do not entertain a doubt of its being rendered entirely competent by the evidence made by Miss Matheny, who proved that it belonged to the prisoner.

That the ruling of the court in its admission may have' induced the prisoner to introduce the witness Jane, thereby making her his witness, may be true; but we do not perceive how this can affect the legality of the proof previously offered, and which it connects ; nor does the record show that the prisoner was under the necessity of introducing her, by the ruling of the court. That it was competent to prove that stains were found upon the shirt, we think, is shown in the previous portion of this opinion.

It was for the jury to determine the weight to which such circumstance was entitled, and whether said stains were caused by chesnut timber, or by blood. Upon the trial of the cause, one Edward Stiff was allowed to testify to certain confessions made by the prisoner to him.— The prisoner insisted that he was an incompetent witness, because he had been convicted of publishing a libel in the Court of Common Pleas, of Hamilton County, in the State of Ohio, the record of which conviction was read to the court.

Waiving the consideration of the question, whether a conviction of an infamous offence in another State would render the convict incompetent to testify in this, it is sufficient to state, in response to this objection, that a conviction for libel does not disqualify the witness. In England, where, for a libel against the government, a party was condemned to stand in the pillory, thus superadding ignominious punishment, it was held not to render him incompetent to testify as a witness.—Gilb. 127; 2 Russ, on Cr. (7 Amer. Ed.) 974. Our statutes have not changed the common law in this respect.

The prisoner, after the court ruled that the witness was competent notwithstanding the conviction of libel, offered the exemplification of the record of said conviction in evidence as tending to discredit the witness, but the court rejected it. We do not see upon what principle the evidence offered could be allowed.

It did not tend, even in respect to the subject matter of the libel, to prove that the party had perverted the truth; for, by the common law, which we must presume, in the absence of proof to the contrary, obtained in Ohio, the truth of the matter averred as libellous could not upon a criminal prosecution be given in evidence. — 1 Russ, on Cr. 222. The most, therefore, the record would prove is, that the witness wantonly or maliciously published a piece in the newspaper, which, although it may have been true, was calculated to irritate and incite to a breach of the peace. In Utley v. Merrick, 10 Met.

Rep. 302, it was held, that a conviction of the offence of obtaining goods on false pretences, did not render the party an incompetent witness, and that the record of such conviction could, not bo given in evidence for the purpose of affecting the witness’ credibility. There would certainly have been more propriety in receiving the evidence in the case just cited than in this, for that was a matter which affected the defendant’s veracity; this does not.

The prisoner offered another objection to the competency of Stiff as a witness, namely, that at the time he was called to testify, and for some time previous thereto, he was and had been insane. To this point there was a great mass of testimony offered to the court, consisting of extracts from a newspaper which was shown to have been edited by the witness and his son, but the articles from which the extracts were taken were shown to have been prepared by the witness..

Some of these related to the great advantages that would accrue to the country, and especially to Cedar Bluff, the village where the paper was published, from the construction of a rail road from that point to Gunter’s Landing, as “ the most feasible and important link in the grand chain of communication between the Atlantic sea-board and the mighty valley of the Mississippi.” In speaking of the consummation of such an enterprise, he says, “ Our own beautiful plain is destined for the locality of perhaps the first city in the State of Alabama : — Who doubts it 1” The record abounds with extracts, some of which are of a personal character, reflecting upon individuals whom he names, and who, he supposes, have conspired to injure him in various ways.

It also contains several pamphlets, shown to have been written by him, and which indicate a love of the marvelous, and that the mind of the author is wont to feed upon the stimulus of exciting subjects even at the hazard of involving his personal safety, a consequence upon which, at the same time, his writings indicate'perhaps a morbid sensibility. It would, however, render this opinion too prolix to attempt to set out this proof, much less to comment upon it in detail.

The question was, whether the witness, conceding him to have labored under mental delusion at a previous period, was. at the time of the trial of sound mind; and upon this point we have the concurrent testimony of his son, L. M. Stiff, and of three physicians, namely : Doctors Rawls, Lawrence and Sparks. Doctor George was of opinion that the witness had naturally an excessive development of the imagination, and he< inclined to the opinion, which he had formed from his writings and vague conversation, and from a letter received from him, that the witness was affected with monomania.

Neither do we think the judge erred in excluding from the jury the evidence offered to prove the witness insane, as affecting his credit. It is no objection either to the competency or credibility of a witness, that he may be subject to fits of derangement, if at the time he is offered it appears that he is sane.—3 Phil. Ev. p. 6, note 6, and cases cited; Evans v. Hettick, 7 Wheat. 453; James v. Stonebanks, Coxe’s Rep. 227; 10 Ser. & R. 282; 4 Phil. Ev. C. & H. Notes, p. 753 n. 387.

The questions attempted to be raised upon the objections to testimony offered to the court upon the preliminary inquiry as to Stiff’s sanity, we need not review; for the proof being for the consideration of the judge alone, we would not intend he was influenced by any evidence which was not proper to be considered by him, and for the more satisfactory reason, that, excluding all the evidence objected to, enough remains to exclude any reasonable doubt as to the witness’ competency.

The witness Stiff, having been admitted to testify, was allowed to prove, against the prisoner’s objection, that the prisoner told him that he (the prisoner) had assisted by means of a false key to get old man Weir’s son out of jail, who was in prison upon a charge of horse-stealing, and that Weir would assist the prisoner in escaping. He also testified that Weir had come to the jail twice, which was likewise objected to by prisoner’s counsel. In Dean v.

The Commonwealth, 4 Grattan 541, the offer of a prisoner to bribe the person who had him in custody, to permit him to escape, was held properly receivable in evidence against him, although the offer and the attempt was made when the prisoner had been committed on a charge of a different offence from that for which he was tried, the charges for both offences being founded on the same fact. It is a portion of the prisoner’s conduct, or rather of his declarations indicating a line of conduct, operating in the nature of admissions. — 2 Russell on Cr. 729.

And the fact that Weir came to the jail, only serves to show that the prisoner had the opportunity afforded him of having entered into the arrangement with him. The prisoner, having proven by Stiff that a conversation was had between him and Stiff, in the presence of several persons, relative to an expected difficulty between the witness and prisoner, growing out of the report that the defendant had made confessions of guilt, asked the witness, with a view of bringing out the witness’ reply, to state all that the defendant, Campbell, had said to him in that conversation.

The counsel for the State objected to this evidence, and the court refused to allow the question to be answered. We are unable to perceive any error in this. The defendant could not give his own declarations in evidence, unless they constituted a part of the conversation which had been drawn out at the instance of the State? which was not the case here, If the object was to impeach Stiff, he should have aslced whether he had not made certain statements at this time and place.

In this way his reply would have gone before the jury, or, if he denied making tho statements, he would be suhj ect to be discredited by proof that they were made. There is certainly no rule of law which would justify the prisoner’s making evidence for himself, by proof of his own declarations, as a means of getting at the reply of the witness who is introduced against him.

It appears, however, that after the court rejected the prisoner’s declarations, the question was asked the witness Stiff, whether he had not made certain statements in the jail, in the presence of certain persons, laying the predicate for impeaching said witness. Stiff replied, that he had made statements, but they were different from those propounded to him, and that he had evaded answering the questions in the presence of the jailer and others.

The State, to rebut any presumption which might be drawn unfavorable to the witness from such evasion, inquired for the motive which induced his conduct on the occasion. referred to, in not communicating freely on the subject of confessions. This was objected to, but allowed..

It is a well established rule of law, that where a witness has been cross-examined respecting his former statements with a view of impairing his credit, the counsel who called him has the right to re-examine him, so as to afford him an opportunity of explaining such statements, (2 Russell on Or. 93T ;) and it is also said by the same authority, that he may be asked what induced him to give to the person or persons to whom he made the communication the account which he has stated in the cross-examination. — ib. 93T; 2Brod. & Bing. 29T.

These authorities show that there was no error in admitting the witness Stiff to make the explanation, as to the motive which influenced him in saying no more than he did about Campbell’s confessions on the occasion inquired of in the cross-examination. The State’s attorney was allowed, against the defendant’s objection, to ask a witness on the part of the prosecution, (Blanton,) whether he had not on the day preceding made statements conflicting with those he now made on the trial; # tho avowed object of the examination being to refresh the witness’ memory.

Whether it is permissible for a party to propound such question to a witness wh.om he has called, is a question upon which there exists some diversity of opinion.

Professor Greenleaf, (vol. 1, § 444,) in his work on Evidence, collects the authorities in a note, and says in the text that the weight of authority is in favor of admitting the party to show that the evidence has taken him by surprise, and is contrary to the examination of the witness preparatory to the trial; or that the witness has- recently been brought under the influence of the other party, and has deceived the party calling him. ££ For, it is said, this course is necessary for his protection against the contrivance of an artful witness, and that the danger of his previous declarations being regarded as substantive evidence, is no greater than it is where the contradictory declarations are proved by the adverse party.” — See the cases cited, Note 1 to vol. 1, Greenl.

Ev. p. 601, 3d ed. The same doctrine seems to be sanctioned by the annotators on Phillips, (Cowan-, Hill & Van Cott,) vol. 4, pp. 769-70, Note 395. The point underwent a thorough discussion in Wright v. Beckett, 1 M. & R. 414. In that case, the witness for the plaintiff testified directly against him, and the plaintiff’s counsel asked him (as was asked in the case before us) whether he had not given a different account of the facts to the plaintiff’s attorney two days before.

This question was objected to, on the ground of its obvious tendency to discredit the witness; but the objection was overruled, and the question was allowed to be put. The cases are ably reviewed by Lord C. J. Denman, who arrives at the conclusion that there is no direct authority compelling the exclusion of such evidence, but some of the cases appeared on principle to prove it admissible, and as truth and justice might materially be affected by its exclusion, he held it proper.