
    Degg v. The State.
    
      Murder.
    
    (Decided April 9, 1907.
    43 So. Rep. 484.)
    1. Criminal Law; Secondary Evidence; Determination of Admissibility. — Since the matter of laying a predicate for the introduction of secondary evidence is for the court to determine such predicate may be laid in the absence of and without the hearing of the jury.
    2. Same; Secondary Evidence; Predicate. — Before secondary evidence is admissible a sufficient predicate ^nust be laid for its introduction.
    
      3. Same; Preliminaries to its Admission as Evidence. — The testimony at a preliminary trial was taken in notes by a stenographer employed by one of the parties; such notes were not transcribed and read over and subscribed by the witnesses at the trial; sometime after the trial the notes were transcribed and at a different place were taken by the magistrate and read over to the witnesses testifying, who subscribed their names as such, but in the absence of the defendant; the stenographer was not examined as to the correctness of his notes or the transcribing thereof and was not shown to have been an officer of the law at the time his notes were taken. Held, not to establish a proper predicate for the admission of secondary evidence.
    4. Same; Instructions; Weight amd Effect of Evidence. — An instruction asserting that the jury should take the secondary evidence of testimony given at a preliminary trial as though the witnesses were present in person is erroneous, since the jury has no opportunity of observing'the witness’s manner and conduct in testifying so as to determine what weight and effect should be given the evidence.
    5. Same; Rule; Separation of Witnesses; Violation. — The right'of defendant to the testimony of his witnesses being guaranteed by the Constitution, where the rule- is invoked as to witnesses and is violated by defendant’s witnesses without defendant’s fault such witness should be allowed to testily and then punished for a violation of the rule.
    6. Same; Instructions Singling Out Testimony; Argumentative. — An instruction asserting that unless the mind of each individual member of this jury is satisfied beyond all reasonable doubt and to a moral certainty that defendant is guilty as charged in the indictment, then you cannot convict her of murder in the first degree, is erroneous in singling out. one phase of the testimony and as being argumentative.
    7- Homicide; Instructions; Self Defense. — An instruction asserting that to.render defendant at fault in bringing on the difficulty by the use of words it must appear that such words had some effect in producing the diffieirlty and that if they did not have such effect then defendant could not be said to be in fault in bringing on the difficulty by the use of such words, was erroneous in not going father and negativing a willingness on defendant’s part to enter into the combat.
    8. Same. — A charge that if the decedent assaulted the defendant without knueks but with rings on his hands, and if these rings were sufficient to enable decedent to inflict great bodily harm upon the defendant, and at the time the fatal shot was fired there was an imperious necessity to take the life of decedent to save defendant from great harm she was entitled to an acquittal was properly refused for a failure to negative defendant’s willingness to enter into the combat.
    xkpPEAL from Gadsden City Court.
    Heard liefoie Hon. John I-f. Bisque.
    Yoiande Degg ivas convicted of murder, and appeals.
    Reversed and remanded.
    The defendant and one Dean and Hasson were jointly indicted for the murder of Womack by shooting him with a pistol. The evidence tended to show the shooting as alleged in the indictment and that the defendant, was the one who find the pistol. There vas othfer evidence tending to show a participation in the difficulty by Dean and Hasson. What is said in refeience to the admission of testimony of the absent witnesses sufficiently appear in the opinion of the court. The testimony for the defendant tended to show self-defense, and that before firing the fatal shot she had been struck in the face by deceased with brass lcnucks. The ruling of the lower court on the admission and rejection of testimony is not discussed in the opinion and will not he here set out. The 01 al charge of the court is set out <n ful!, and a great many executions are reserved thereto, bur the only one insisted on is as follows:. ‘"You have a right, gentlemen.' !' ¡.he jury, to look to the fact that Will Hasson and Hazel Dean are jointly indicted with this defendant in determining what Aveight yon Avill give to their testimony.” The instructions of the court in reference to what Aveight should he given to the testimony of the absent AA'itnesses, taken down as theiein stated upon the preliminary trial, sufficiently appear in the opinion, The folloAving wiitten charges Avere requested by the defendant and refused: “ (32) The court charges the jury that, unless the minds of each individual member of the jury is satisfied beyond all reasonable doubt and to a moral certainty that Yoiande Degg is guilty as charged in the indictment, then you cannot convict her of murder in the first degree.” “(36) The court charges the jury that, to render the defendant at fault in bringing on the difficulty by the use of words, it must appear that such Avords had some effect in producing the difficulty or encouraging the difficulty. If tlie words were profane, but did not in fact have any effect in producing or encouraging the difficulty, then defendant, if she used such, words, could not be said to be at fault in bringing on the difficulty by reason of the use of such word-s.” “(40) The court charges the jury that if the deceased assaulted the defendant without knucks on his hands, but with rings on his hands, and if these- rings were sufficient to enable deceased to infidel great bodily harm upon defendant, then if defendant was free from fault in biinging on the- difficulty, and at the time of firing the fatal shot there was an imperious, impending necessity, either real or apparent, to take the life of Womack to save herself from great bodily harm, then defendant is entitled to an acquittal.” What happened in refeience to the refusal of the court to permit the defendant to use Manning as a witness sufficiently appears in the opinion of the court. The defendant was convicted of murder in the second degree, and sentenced to the penitentiary for 22 years.
    Goodhue & Blackwood, and Knox, Acker & Blackmon, for appellant.
    The court erred in the admission of Girard’s testimony. The rule is well settled in Alabama that’ the testimony- of a deceased witness on a former tiial must be supported by the evidence of some wivness who is able to state that he remembers substantially all the evidence of the deceased’s witness.— Thompson v. The State, 106 Ala. 75; Davis v. The, State, 17 Ala. 354; Magee v. Doe, 22 Ala. 699; ¿Hldresleeve v. Oarroioay, 10 Ala- 260; JSberfeldt v. Waite, 79 Wis. 284; Tibbots v. Flanders, 18 N. H. 284; 1 Greenleaf on Evi? deuce (15th Ed.) secs. 165-66. The court especially erred in its instructions to- the jury with respect to Girard’s testimony. — Flemvng v. The State, 43 South. 219 The court erred in refusing to permit the defendant to introduce Manning as a witness. — State v. Brookshire. 2 Ala. 303; 12 Cyc. 548; 8 Ene. P. & P. 93; Parker v. The'State, 67 Me. 331; Davis v. Byrd, 94 Ind. 325; State v. Thomas, 11 Ind. 515; People v. Boscavitch, 20 Cal. 436; Gregg v.'The State, 3 W. Ya. 704; Smith v. The 
      
      State, 4 Lea 428; May r. The State, 90 Ga. 793; 1 Thompson on Trials, see. 281.
    Alexander M. Garber, Attorney-General, for appellee.
    The court did not err in reference to Girard’s testimony. — Floyd r. The State, 82 Ala. 16; Matthews v. The State, 96 Ala. 62; Sanford v. The State. 143 Ala. 78; Shirley^ r. The State, 40 South. 368. The manner of the admission of testimony was not error and the charges of the court with respect thereto was not an invasion of the piovince of the jury. — Ledbetter v. The State, 143 Ala. 52; Crane v. The State, 111 Ala. 45. The trial court did not abuse its disci etion in not permitting the witness Manning to testify. — Thorne v. Kemp, 98 Ala. 417; Sidgrea-nes v. Wyart, 22 Ala. 619; Montgomery v. The State, 40 Ala. 684; Burkes v. The- State, 120 Ála. 387; Riley v. The State, 88 Ala. 193. The court properly refused charge 32. — -dimers v. The State, 126 Ala. 20; Austin v. The State, 40 South. 989; Mitchell v. The State, 132 Ala.' 65.
   DOWDELL, J.

The laying of a predicate for the introduction in evidence of the testimony of the witnesses Girard and Moore, that had been given by them on the preliminary trial, was matter addressed to the court, and not to the jury. It was, therefore', of no importance that this was -done in the absence of and without the heai Log of the1 jury. The evidence so sought to be introduced of the witnesses Girard and Moore, the former having died and the latter having removed beyond the jurisdiction of the court, was secondary evidence, and it was necessary, under the law, that a proper and sufficient predicate should be laid before it could be admitted. It- appears from the record that the testimony of these two witnesses, had on the preliminary trial, was not reduced to writing by the- magistrate before whom the trial was had, nor by any one under his direction; but it does appear that it wus taken in stenogra.-' phic notes by a stenographer who was employed by one of the parties to the prosecution. The stenographic notes were not transcribed or put in type and read over to and subscribed by tlie witnesses during or before the termination of the preliminary trial. At some time after the trial, how long, it does not appear, the stenographic notes were transcribed or put in type, and were at a different time and place, and in the absence of the defendant, taken bt the magistrate and read over to the witnesses testifying, wiio subscribed their names as such. It. does not appear that the stenographer was an officer of the law- and that he made the notes of the testimony of the witnesses and transcribed the same in the discharge of his duty as such an officer of the law, and hence no presumption can he indulged in favor of the correctness of the stenographic notes or of the transcribing, as might he the case if such stenographer had been acting in his official capacity. The stenographer was not examined as to the correctness of the transcribing. Without evidence that the notes of the testimony and the transcribing of them correctly reported the testimony of the withess, which they purport to represent and state, other than the mere fact that the translation of the notes were subsequently, at some indefinite time and in the absence of the defendant, read over to the witness and hv such witness subscribed, a proper and sufficient predicate could not be said to he established for the admission of such secondary evidence. It needs no argument to demonstrate the wrong and injustice that might result to a defendant fiom snch practice.

Moreover, the question as to what was the testimony of these two witnesses on the preliminary trial was one of fact for the jury to determine. When the testimony of these tvm witnesses, taken down as above shown, was being read to the jury, the court instructed the jury to take this evidence as though the witness wras present in person, testifying before them. In this the court erred. The evidence was secondary, and presupposed that there was better evidence, and it was admissible upon the ground that the better evidence wras not obtainable, and for the further reason that the ends of justice might not fail because of an inability to produce the primary or better evidence. The presence of the witness delivering the testimony affords the jury an opportunity of seeing the witness, his manner, and his conduct in delivering his testimony, to determine the weight to be given it. In the admission of the secondary evidence, the jury is deprived of these conditions and circumstances in determining what weight should be accorded the1 evidence.—Fleming v. State. 150 Ala. 19, 13 South. 219.

The defendant's witness Manning should have been allowed to testify. We are not unmindful of the fact that it has been held that the admission of the testimony of a witness who has been put under the rule and who has violated the rule is in the discretion of the trial court, and as a general rule the action of the trial court in the exercise of this discretion will not be reviewed on appeal. The better practice, however, seems to be to permit the witness to testify and punish for the violation of the rule. We are of the opinion that where the rule is invoked as to witnesses, and is violated by a witness without any fault on the part of the defendant, the court lias not the right under the law to deprive the defendant of the testimony of such witness. We think the right is one guaranteed to the defendant by the constitution, and of which he may not be deprived without fault on his part. In the present case Manning was not a witness at the time the rule was invoked and the witnesses were sworn and put under the rule. His evidence at this time was not known to the defendant oi his counsel, and as soon as it became known he was sent without the hearing of the case, and Avas afterAvards SAVorn and put under the rule. It is evident that neither the witness Manning, nor the defendant, nor his counsel Avas at fault. Under these circumstances, Ave are clearly of the opinion that the defendant Avas entitled to the testimony of this Avitness as a matter of light. In support of what Ave have said above, Ave call attention to the cases cited in brief of counsel for appellant.

That portion of the oral charge of the court, excepted to by the defendant, when taken in connection with the charge as a Avhole, AA’as free from error. It Avas a conceded fact that Hasson and Dean were jointly indicted with the defendant. There Avas also evidence tending to shove that these parties participated in the difficulty, which resulted in the homicide.

Written charge 32, requested by the defendant, was properly iv-fused, it singles out and gives undue prominence to one phase of the testimony, lie,sides being argumentative.—Gilmore v. State, 126 Ala. 20, 28 South. 595; Austin v. State, 145 Ala. 37, 40 South. 989.

Charge 3(> was properly tc fused. The charge did not negative a willingness on the part of the defendant to enter into the combat, and 'there was evidence from which the jury was authorized to infer such willingness. For the same reason there was no mor in refusing charge No. -10.

In the ‘foregoing opinion' we have considered all the questions discussed by counsel for appellant in the;r brief. There v, ere many objections made and exceptions reserved cn the intioduction of evidence; but, as learned counsel for appellant declined to discuss the same, we may fairly conclude that such exceptions are wanting in merit, and, after having gone over .them, we entertain such opinion.

For the errors pointed out, the judgment of the trial couit will be reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Anderson and McClellan, JJ., concur.  