Wills v. State , 73 Ala. 362 ( 1882 )

SOMERYILLE, J.

— It is an imperative provision of our Bill of Rights, that'in all criminal prosecutions the accused has ■a constitutional right:“to he confronted by the witnesses against Mm? — Decl. Rights, Const. 1875, Art. 1, § 7. The same right is secured in the Constitution of the United States, and is a recognized principle in, perhaps, all of the various American States, either in the form of constitutional or statutory provisions. Its purpose is plain. It.was to require the witnesses against the accused to be produced in open court, so that he may see them face to face, and have the opportunity accorded him to cross-examine them, during the viva voce rendition of their criminating testimony.- — 1 Bish. Cr. Proc. § 1090; Com. v. Ricketson, 5 Met. 132 ; State v. Thomas, 61 N. C. 74; Jackson v. Com., 19 Grat. 656.

If, therefore, the witnesses for the State or government be absent,, as a general rule, there is no known mode by which their emboarte statements against the accused can be used in evidence for the purpose of liis conviction without his consent.. “The exceptions to this rule,” as observed by Mr. Cooley, “are of cases which are excluded from its reasons by their peculiar circumstances; but they are far from numerous.” — Cooley’s Const. Lim. (1th Ed.) *'318. These exceptions are fully discussed in Marler v. The State, 67 Ala. 55, and we need not again enumerate them. It is enough that there is no contention that they embrace the case under consideration. — 1 Greenl. Ev. 163; 2 Best. Ev. § 196; 1 Phil. Ev. 389.

This right of the accused to be confronted in mien court by the witnesses against him was a provision of Magna Gharta, and was also probably recognized by the ancient common law. 1 Bisli. Or. Proc. § 1090. But it was sometimes doubted by the writers on the common law in England, and was often denied in practice, notably in the case of Sir Walter Baleigh, who on his trial, as remarlmd by Mr. Greenleaf, earnestly demanded “that he might see his accuser face tó face;” protesting against “the admission of a statement in the form of the substance of an examination taken in his absence; but this was-denied him, and the examination was admitted.” — 3 Greenl. Ev. § 11; 2 Ilawk. P. C. B. 2, Cli. 16, § 9. There can be no doubt of the fact that the framers of-our constitution designed to clearly establish and make irrppealable by legislative or judicial action, this invaluable prerequisite to securing a fair and impartial trial by jury.

It is manifest, in the light of these principles, that the action of the circuit court, assigned for error, deprived the defendant of the benefit of this constitutional privilege. The written statement, or showing, as to what the absent witness for the State, Cora Dickerson, would prove' if present, was clearly inadmissible as evidence against the prisoner without Ms consent. The court had no authority to require the defendant to admit that such witness, if present, would testify as stated in such showing. He could demand the personal presence of the witness in open court, so as to confront her, face to face, and subject her to the scrutiny of a cross-examination. The court, in its ruling on this subject, denied to the defendant a clear constitutional right.

We see no error in refusing to give the written charges requested by the defendant. Two of these charges, numbered one and eight respectively, purport to be an exposition of the doctrine of self-defense, applicable to cases of excusable homicide. This doctrine is not available where the defendant was himself the aggressor, or was not reasonably free from fault in bringing on the difficulty. — Leonard v. The State, 66 Ala. 461; Cross v. The State, 63 Ala. 41; Cases Self. Def. (H. & T.) 24. Nor can the principle be invoked unless the evidence tends to show that the defendant was, or appeared to-be so menaced,-at the time, by some overt act on the part of his assailant, as to create in his mind a reasonable apprehension -of danger to his life, or else the infliction upon him of some grievous bodily harm, and that there was no other reasonable mode of effecting his escape from such impending peril. — Ingram v. The State, 67 Ala. 67; Ex parte Brown, 65 Ala. 446; 1 Bish. Cr. Law, §§ 842 et seq. The charges were erroneous in ignoring these essential elements of this general principle, or doctrine.

The vice of the charge numbered four lay in the fact that it might be construed to authorize the jury to acquit both of the defendants on trial, if they entertained a reasonable doubt as to the guilt of either one of them. This was not only misleading, but clearly erroneous.

The judgment of the circuit court must, however, be reversed for the error first considered, and the cause remanded for a new trial. Let thfe prisoner, in the meanwhile, be retained in custody until discharged by due course of law.