
    Cotton v. The State.
    
      Indictment for Rape.
    
    1. Evidence identifying defendants as perpetrators of offense. — Where the defendants deny their guilt, though identified by the prosecutrix, and show that, before theii arrest, she had given a description of the guilty parties which did not suit their appearance, it is competent for the prosecution to prove that, after their arrest, she identified and pointed them out among a large number of prisoners.
    2. Objection to party’s own evidence.- — -A party can not object or except to the admission of evidence which he has himself elicited.
    3. Privileged communications between attorney and client. — An officer, having the legal custody of a prisoner, should allow him every reasonable opportunity, consistent with his safe keeping, for private consultation with his attorney; yet he may testify to communications made in his presence, although they might be privileged as between the attorney and his client.
    4. Evidence of prior contradictory statements of defendant. — The defendant testifying in his own behalf to an alibi, it is competent for the prosecution to prove his prior contradictory statements, by affidavit or otherwise, as to his whereabouts on the day named; but evidence of prior statements made, not inconsistent with his testimony on ttie trial, is not admissible.
    5. Charge on part of evidence. — Where the evidence adduced by the prosecution is both direct and circumstantial, a charge requested, as to the sufficiency of circumstantial evidence to authorize a conviction, ignoring the direct evidence, is properly refused.
    6. Special venire in capital case. — When the arraignment and the trial, in a capital case, occur in the same week, the special venire should include, not “those summoned on the regular juries for the week” (Code, § 4320), but only those who have appeared, and who constitute the regular juries in fact.
    From tbe Circuit Court o£ Dale.
    Tried before tbe Hon. Jesse M. Carmichael.
    Tbe defendants in tbis case, Greene Cotton and William Hendrix, freedmen, were jointly indicted, tried and convicted of committing a rape on Martba Fralisb, and were sentenced to tbe penitentiary for life. “On tbe trial,” as tbe bill of exceptions states, “evidence was produced by tbe State tending to sbow tbe defendants’ guilt. Tbe prosecutrix swore positively to tbe commission of tbe offense, and tbat tbe defendants committed it; also, tbat it was tbe first time sbe ever saw tbem. Tbe defendants produced evidence tending to prove an alibi, and tbat they were not guilty; averring positively tbat they did not commit tbe offense, and tbat tbey never were in tbe vicinity where it was committed. Tbe prosecutrix, while on the stand as a witness, was asked by the defendant, if she did not, in the evening after she said the offense was committed, and at tbe place where sbe said it was committed, in describing tbe parties wbo sbe said committed it, tell Mr. Baker and Mr. Cberry, witnesses for tbe defense, a description of tbe men tbat would not conform to defendants; and sbe answered, tbat sbe did not. Tbe defendants tben introduced said Cberry and Baker, wbo testified tbat tbe description sbe gave them, at tbe time and place named, did not correspond to tbe defendants. Tbe State tben asked tbe prosecutrix, if nine other negroes were brought to her for identification soon after tbe offense was committed, and before tbe defendants were arrested, and if sbe identified either of the nine as the guilty parties; and sbe answered, tbat they were brought before her, and tbat sbe did not identify any of them.” Tbe defendants objected to each of these questions and answers, and excepted to their allowance. “Tbe State tben asked tbe prosecutrix, if sbe went to Milton, Florida, and there saw the defendants; and sbe said, yes. Tbe State then asked her, if sbe saw them in jail in Ozark in January, 1888, and there identified them; and sbe answered, yes.”
    “Tbe defendants introduced one Hatton as a witness, and asked him, if be was at tbe place where tbe offense was said to have been committed; and be replied, tbat be was at a place where said Baker and Cberry told him tbe offense was committed, and tbat said Baker fell down and rolled over, to see if be would leave any signs of scuffling. Tbe defendants tben asked him, if tbe prosecutrix told him tbat was tbe place; and be answered, no. Tbe defendants tben moved to exclude tbe said testimony of Hatton, ‘that be was at a place where said Baker and Cberry told him tbe offense was committed’ ; and they excepted to tbe overruling of their motion.”
    Tbe defendants also objected and excepted to tbe testimony of one Mosely, tbe county jailor, as to declarations he bad beard Greene Cotton, while in bis custody, make to one J. C. Cotton, bis attorney; tbe facts being thus stated in tbe bill of exceptions: “After tbe proper predicate bad been laid as to time and place, tbe State proposed to ask tbe defendant Cotton, if be did not tell said Mosely tbat be was at West-ville on tbe 25th October, 1887, on Maj. Landrum’s front (?) for nearly a balf-day, and tbat be met at LeFuniack, Florida, on tbe 26th October, a lawyer Horn Milton, Florida, named Perrinote, and talked with Mm, and tried to borrow money from him, saying that be was strapped, and tbat be could prove these facts, if be bad tbat lawyer here. Tbe evidence showed tbat said Mosely was tbe jailor at tbe time, and bad tbe charge and custody of tbe defendants; and that said Mosely beard said defendant make said statements to one J. C. Cotton, a practicing lawyer, who was defendants’ attorney at tbe time. Tbe defendants objected to the question put to said Greene Cotton, and excepted to its allowance. The court having permitted said Mosely to testify to tbe declarations of said Greene Cotton to bis attorney, J. C. Cotton, defendants offered said J. C. Cotton as a witness, and asked bim if said Greene Cotton, at tbe time mentioned by Mosely, told bim tbat be was in DeFuniack on Wednesday, October 26th; and be replied, tbat Greene Cotton told bim be was in DeFuniack on Thursday, and in Milton on Wednesday, October 26th. The State then asked J. C. Cotton, if said Greene Cotton did not tell bim tbat, on the 25th October, be was a half day on Maj. Landrum’s front (?) in Westville, Florida; which the witness declined to answer, because it called for a privileged communication. Tbe State then moved to exclude tbat part of said J. C. Cotton’s testimony, wherein be said tbat Greene Cotton told bim be was in De-Funiack on Tuesday, and in Milton on Wednesday, October 25th, this being tbe conversation testified to by Mosely. Tbe witness, being informed by tbe court tbat be need not testify to confidential communications between himself and bis client, asked to withdraw said statements; which was done, and no objection or exception taken.”
    “Tbe defendants requested each of tbe following charges in writing: (1.) ‘To justify conviction, circumstantial evidence ought to exclude a rational probability of innocence; and a conviction ought not to be bad on circumstantial evidence, where direct and positive evidence is attainable.’ (2.) ‘The true test of tbe sufficiency of circumstantial evidence is, whether tbe circumstances as proved produce moral conviction, to tbe exclusion of every reasonable doubt.’ (3.) ‘The humane provision of tbe law is, tbat upon circumstantial evidence there should not be a conviction, unless to a moral certainty it excludes every other reasonable hypothesis than tbat of tbe guilt of tbe accused.’ Tbe court refused to give either of said charges, and to such refusal defendants excepted,”
    
      H. L. Martin, for the appellants.
    ¥i, L. Martin, Attorney-General, for the State.
   McCLELLAN, J.

The defendants in the court below were identified by the prosecutrix, as the perpetrators of the crime. It was attempted to be shown that, before their arrest, she had given descriptions of them, which were not accurate. The purpose, and only legitimate effect of this testimony was, to engender in the minds of the jury a doubt as to the certainty of her subsequent identification of the parties. To meet this tendency, it was entirely competent to show that she fixed upon these men as the criminals, out of a number who had been brought before her. To be able to select one or more out of a multitude, or out of any greater number, is one of the ordinary tests of the correctness of the identification; and the fact that the prosecutrix did this, goes to show that, although she may have expressed an inaccurate description, she evidenced no hesitation or uncertainty in pointing out the defendants, when they and others were brought befoie her.

A defendant can claim no advantage, on appeal, for an error which he superinduced; nor can he predica:e an assignment of error on the refusal of the trial court to exclude testimony, which he has adduced before the jury. The action of the Circuit Court in overruling the defendants’ motion to exclude the evidence of the witness Hatton, whether erroneous or not, abstractly considered, can not avail the appellants.—Ex parte Winston, 52 Ala. 421; Shelton v. State, 73 Ala. 5.

The rule as to the inviolability of professional confidences applies, as between attorney and client, only to communications made and received for the purposes of professional action and aid, and the secrecy imposed extends to no other persons than those sustaining to each other the confidential relationship, except the necessary organs of communication between them, such as interpreters, and their own agents and clerks. If the parties choose to hold their conferences in the presence and hearing of third persons, whether they be officers of the law, and, as such, charged with the custody of the client, and hence necessarily present, or indifferent bystanders, there is no rule of law which forbids such third persons to depose to facts thus coming to their knowledge. The evidence of the witness Mosely, who was the jailor, as to what one of the defendants told his attorney in his presence, was properly admitted. We, of course, are not to be understood as intimating that it is not the duty of officers, having the custody of alleged criminals, to afford them every opportunity, consistent with the safe-keeping of their prisoner, for private consultation with their attorneys.

The defendant Greene Cotton having testified that he was in Milton, Florida, on the 26th day of October — the day on which the offense was committed — it was entirely competent for the State to impeach' and discredit his evidence in this connection, a proper predicate therefor having been laid, by showing that, either in court or elsewhere, he had made statements, by affidavits or otherwise, as to his whereabouts on that day, which were inconsistent with his statements on the trial.

We are unable to see that the testimony adduced by the State, to the effect that the defendant Hendrix had sworn, on his application for a continuance made at a former term, that there was a large number of witnesses, at different points in Florida, whose names were unknown to him, and could not be ascertained in time to be stated in the application, &c., was pertinent to any issue in the case. As the matter is presented in the bill of exceptions, this statement is not inconsistent with any fact deposed to by this defendant on the trial; and it was therefore irrelevant for the purpose of impeachment, for which it appears to have been introduced. It should have been excluded.

The evidence which tended to establish the guilt of the defendants, was both direct and circumstantial. The charges requested by the defendants ignored entirely all the positive testimony in the case, and required the court to direct the attention of the jury alone to the circumstances which, in greater or less degree, bore upon the question of guilt. Their tendency was to obscure the most potent facts adduced before the jury, and to authorize a determination of the question of guilt vel non upon a consideration of a part, and that probably the least important part of the evidence. They were clearly misleading, if not in a certain sense abstract, and were properly refused.—A. G. S. R. R. Co. v. Jones, 71 Ala. 487.

In the case of Yandy Hick, at this term, ante, p. 61, it was held that an order for the organization of a special jury under the law applicable to Dale county, which directed the sheriff to summon “sixty persons, including those summoned on the regular juries for the week,” was irregular- and erroneous, when, as in that ease, and in this, the order for the jury, and setting a day for the trial, was made, and the trial had in the same week. Such was the order in this case; and on the authority of the case referred to, the judgment of conviction will be reversed, and the cause remanded.

Reversed and remanded.  