Campbell v. State 23 Ala. 44

CAMPBELL vs. THE STATE.

1. A witness may be asked, and may state, his “ opinion as to the time of day” when an event occurred.

2. So, also, he may state his opinion as to the length of time which elapsed between the happening of two events.

3. Evidence that the shoes taken from the feet of the horse ridden by the prisoner on the morning of the murder, “ seemed to fit in every particular” the tracks found near the body of the deceased, is admissible against Mm.

4. When the evidence against the prisoner is entirely circumstantial, Ms conduct, his situation and locality, as affording Mm opportunities of knowing when the deceased left the school on the morning of the murder when she was last seen in life, and whether his being in that place at that particular time was or was not an unusual occurrence with Mm, are all circumstances which, though weak in themselves, are not so foreign from the main inquiry as to justify their exclusion from the jury as irrelevant.

*455. On the trial of a prisoner indicted for murder, the evidence against him being circumstantial, it was shown that, on the second morning after the murder, he was seen coming from the direction of a house where two wo men, mother and daughter, resided, the daughter being an unmarried woman who had two children; that he had frequently been seen there before, at one time shaving and changing his clothes; that, on the evening of the s ame day, witness went to the house, and found the daughter alone, washing a man’s shirt, which had splotches or stains on the bosom and cuff of the right sleeve; that “ said splotches lookod more like the stains from chesnut timber than anything else witness could compare them to that no man lived in the house, and witness knew no man in that neigh, borhood who wore so fine a shirt. The witness was asked, whether any person inquired of him if he knew what would take stains out of shirts; to which he replied, that the question was asked him by the young woman, and gave his answer to it. The prisoner objected both to the question and answer, and also moved to exclude from the jury all that the witness had said about the shirt and the stains on it, but the court refused to do so. The young woman was afterwards introduced as a witness for the defence, and testified, on cross-examination, that the prisoner stayed at their house on the second night after the murder, that he left a shirt with her to be washed, and that she washed it. Held, that the evidence objected to by the prisoner was properly admitted.

6 and 7. A conviction for libel in another State does not disqualify a witness in this State; nor is the record of conviction admissible in evidence to discredit him.

8. It is no objection either to the competency or credibility of a witness, that he is subject to fits of mental derangement, if it appears that he is sane at the time he is offered.

9. When the competency of a witness is attacked on the ground of insanity, and the court decides in favor of his sanity, the evidence adduced to the court cannot be submitted to the jury to affect his credibility.

10. When evidence in adduced to the court on a preliminary examination touching the incompetency of a witness by reason of insanity, the Appellate Court will presume that the judge was not influenced by any evidence which he ought not to have considered.

11. The prisoner’s confession that he had assisted to get another man’s son out of jail, who would aid him in escaping, and the fact that this man had come twice to the jail where the prisoner was confined, are admissible evidence against him.

12. The declarations of the prisoner cannot be given in evidence in his favor,- even for the avowed purpose of bringing out the reply of the witness to whom they were made, unless they constitute a part of a conversation drawn out in evidence by the State.

13. When a witness has been cross-examined respecting his former statements, with a view of impeaching Mm, he may be asked on re-examination in chief his motive in making those statements.

14 A party may ask his own witness whether he has not previously made statements inconsistent with what he has just statqd on the trial.

*4615. A witness may be questioned, on cross-examination, as to his habits of drinking.

16. After the State has proved the appearance of the prisoner on the evening of the day of the murder and on the following day, the prisoner cannot be allowed to prove that, on the third day thereafter, when informed of the murder, he appeared surprised; nor can he be allowed to prove that he seemed astonished, when informed that he was suspected of the murder.

17. When a witness is introduced for the purpose of impeaching another by proof of his general character, and, on cross-examination, testifies, that public rumor imputed to the impeached witness “ a bad moral character as to drinking, fighting, murder, shooting at men, and certain publications, reputed false, in his newspaper,” he cannot be asked on re-examination in chief, £ what other moral delinquencies public rumor attributed to him;’ nor, ‘ what rumor said in regard to those publicationsnor, ‘ whether he did not know of his own knowledge, that they were false.’

18. The general character of a witness at his place of residence, cannot be proved by evidence of what rumor said of it before he came to that place.

19. Evidence that several indictments for libel are pending against a witness, is not admissible for the purpose of impeaching him.

20. A letter written for the prisioner by the witness, while they were in jail together, is not admissible evidence for the prisoner, either as original testimony of its contents, or for the purpose of impeaching the witness.

21. Any evidence giving a history of the prisoner’s acts on the day of the murder, is relevant, and admissible against him.

'22. The prisoner’s witnesses may be questioned, on cross-examination, as to their relations with the prisoner, — -whether they were on terms of friendly intimacy— their means of knowing the facts to which they testify, and as to any liens or prejudices which might influence them.

23. An unmarried woman may be asked, on cross-examination, although she might refuse to answer, whether or not she has any children.

24. The county surveyor, a witness for the prisoner, illustrated his evidence with a diagram which he had himself'made, showing the relative situation and distances from each other of several places near the scene of the murder. The diagram was introduced without objection from the State, and the witness was cross-examined on it. Held, that it was discretionary with the court to allow the jury to take it with them on their retirement, and its exclusion from them was not revisable on error.

25. A witness for the State, who, on cross-examination, testifies • that he has taken ah active part in the prosecution, and that he cherishes unfriendly feelings towards the prisoner, may be asked, on re-examination, “ whether his feelings towards the prisoner are such as to desire to see an innocent man convicted.”

26. The individual opinion df a witness, founded on rumor respecting the guilt of another witness of the crime of mnrder, is not admissible for the purpose of impeaching the latter.

*47Error to the Circuit Court of DeKalb.

Tried before the Hon. Robert Dougherty.

James H. Campbell, the plaintiff in error, was indicted in the Circuit Court of Cherokee, at the Spring term thereof, 1851, for the murder of Martha Garrett. The venue was changed, on his application, to the County of DeKalb, where a special term was ordered to be held, commencing on the fourteenth day of June, 1852, for his trial; at which time he was tried and convicted, the trial lasting two weeks, and was sentenced by the court, on the finding of the jury, to the penitentiary for life.

On the trial, a bill of exceptions was signed and sealed by the presiding judge, which presents a number of exceptions to the rulings of the court in the admission and rejection of testimony, which are now assigned for error. For a better understanding of the case, it is proper to give a brief synopsis of the proof, about which there appears to have been no controversy, explanatory of the circumstances and condition of the deceased at the time she was found.

It appears that, on Sunday, the third day of December, 1850, the deceased, aged twelve years and thirteen days, left the house of her mother, who was a widow lady, residing three fourths of a mile from Centre, in which village is located the court-house of Cherokee County, to attend the Sabbath school which was then, and had been for several months previously, held in said court-house, and of which she had been a punctual attendant. On the next morning, her body was found some forty yards from the road leading from said village to her mother’s, lying in a dry branch; her throat cut; two severe wounds on the head; her person violated, and one of her hips dislocated; her bible, hymn-book and handkerchief lying within about eighteen inches of her body. The last time she was seen in life, was upon the adjournment of the Sabbath school, about 11 o’clock, A. M., when she started homo, making a pause of three or four minutes at the house of Mrs. Martin. The distance from the courthouse to the place where the body was found, was about nine hundred yards.

The evidence tending to connect the prisoner with the murder, was circumstantial, and consisted also of confessions of guilt *48made by him to one Edward Stiff. It appeared that, the evening before the murder, the prisoner had had a conversation with one West, about the purchase of a watch; that it was agreed between them, that West should bring the watch to him the next morning, (Sunday,) as he proposed going on that day to Gunter’s Landing, to attend the races, and he wished to wager the watch on a horse-race; that West failed to bring the watch, and the prisoner spoke to several persons the next morning about his intention to go for it to Mrs. Covington’s, where West boarded, and who resided about a mile from the village of Centre.

It appears that, at the time when the Sabbath school adjourned, the prisoner was at a tavern in the village, kept by one Asa Allen, near enough to observe the adjournment; that, some short time after the adjournment of the school, he borrowed a horse from one Joseph Street, and left the tavern about 11 o’clock, but the testimony was conflicting as to the precise time; that he went to Mrs. Covington’s, remaining there about five minutes; but there was a conflict in the evidence, as to the time of his departure from Centre, the length of time he was absent, and the exact time of his return ; that horse-tracks were found, diverging from the road from Centre to Mrs. Covington’s, and extending in the direction of the place where the body was found, and the evidence conduced to prove that these were the tracks of the horse ridden that morning by the prisoner. It was also shown that the water in a pool, situated between the place where the body was found and Mrs. Covington’s, was discolored with blood on the third day after the murder, and that the heel of the defendant’s boot corresponded in size with tracks made near the edge of the pool.

A largo number of exceptions are set out in the record in relation to the admission and exclusion of evidence; but, as most of them are noticed at length in the opinion of the court, it is not deemed necessary to recapitulate them in this place.

Mrs. Shackleford, a witness for the defence, testified, that her husband kept a tavern in Centre; that Campbell was one of thoir boarders ; that she had his washing done, and knew the number of his drawers ; that he ate dinner at their house on the Sunday of the murder ; that they sat down to dinner about 12 o’clock; that Campbell was at home some fifteen minutes before *49dinner was ready; that she saw his shirt bosom, and it was the same one he had on the Saturday evening before; that she saw no blood or other stain on the bosom. On cross-examination of this witness, the State’s counsel asked her the following questions : Whether she had any drawers in defendant’s room ? Whether she had made any vest or shirts for him ? Whether she had ever darned or mended any of his clothes during his stay at her house as a boarder; to which she answered, that she did, as she had also done for other boarders. To each one of these questions the prisoner, by his counsel, objected ; his objection was overruled, and he excepted.

Miss Anthony, a witness for thé defendant, testified, that she saw him, on the morning of the murder, get the horse' ridden by him that day, and start out of town in the direction of Mrs. Covington’s, and that it was then some time after 11 o’clock.— On cross-examination by the State, she was asked the following questions : “ Do you not recollect where you first met the defendant V ’ u Campbell called there, I suppose ?” “ Where did you next meet him, the defendant!” “ Do you recollect where you met the defendant the next time ?” : “ Was the defendant, Campbell, a frequent visitor at Mr. Weir’s house?” “ Did you ever go to any assembly, ball, church or show, in company with the defendant, Campbell?” To this last question the witness answered : “ Mr. Campbell went to preaching with me once or twice.” “ Was it before the murder of the deceased that you went to preaching with the defendant?” “ Had not Campbell made propositions of marriage to you before the death of Miss Garrett?” “ Has he not made propositions of marriage to you since the death 'of Miss Garrett?” To each one of these questions, and to the answer above stated, the prisoner objected; his objection was overruled, and he excepted. “ The State then proved by the witness, that she was a witness before the grand jury by whom the indictment was found ; that after sho had been in the grand jury room, before sundown on the same day, she was sitting in Mr. Weir’s house; that Mrs. Weir was absent from home, at some place-in the village; that the front door of the house, which was on the street, was closed, and the back door was open-; that some - members of the grand jury knocked at the front door, and then went in. The State then offered to prove by the witness that *50the said grand jurors, on getting into the room, found the defendant sitting in the room with her alone. To this the defendant objected; his objection was overruled, and he excepted. The witness answered, that Campbell was sitting in the room, conversing with her at the time.”

Jane Matheny, a witness for the prisoner, testified, on cross-examination, “ that she had known Campbell for some ten or eleven years, and that she had never been married ; that since the prisoner returned from Mexico, has visited witness every week or so; never has stayed away longer than seven weeks. The State then asked her: “ Have you any children ?” to which defendant objected; his objection was overruled, and he excepted; the witness answered, that she had two children.— The State then asked her, where her mother was on the day that Coggins swore she had shown him a shirt. To this question defendant objected, his objection was overruled, and he excepted. The testimony of the said Jane Matheny conduced to prove, that the defendant had stayed all night at her mother’s, with whom the witness then and now lives, on Monday night after the murder ; that he left there Tuesday morning ; that he left a shirt to be washed, and that she washed it. The attorney for the State asked her, what she was doing the day after Campbell left'? To this question defendant objected, his objection was overruled, the witness required to answer, and defendant excepted. She was then asked by the State’s counsel, “ Where did your mother go that day V} To this question defendant objected, his objection was overruled, and he excepted. Witness was asked by the counsel for the State, “ Did you not have a conversation with Mr. Ryan, a few weeks after you moved to Frank Hail’s, in which you said, “ Campbell has neglected me ; if Campbell don’t mind, I will tell all I know about it.” Question objected toby defendant; objection overruled ; witness required to answer, and defendant excepted.”

“ James Gaines was introduced by defendant to prove the general character of said Edward Stiff; proved it bad; was asked, on cross-examination, upon what he based his opinion, and what Stiff had done to give him a bad character; to which defendant objected, his objection was overruled, and he excepted. Witness said, he had heard men say that when Stiff was interested, they would not belive him on oath. He was' asked by the *51State, who he had heard say so, and where, and when.- To the question defendant objected, objection overruled, and defendant excepted.

“ Henry Cole, a witness for defendant, before he was exam?:'' ined in chief, was sworn to answer questions ; and was asked by the State, ‘ whether he had not made revelations to one of the counsel of the defendant, as to what he would swear.’ The question objected to by defendant, objection overruled, and defendant excepted. After the said Henry Cole was put on his examination before the jury, he was asked the same question; defendant again objected, was overruled, and excepted.”

“One Counts, a witness for defendant, was asked by the State, ‘ if he did not tell Jane Matheny that Campbell was suspected of the murder of Miss Garrett.’ Question objected to by defendant, and objection overruled ; defendant excepted. Witness answered, he did not.”

The other matters of exception will be readily understood from the opinion and briefs.

A. J. Walker, for plaintiff in error :

Joseph C. Street should not have been allowed to state his “ opinion,” either as to the time of day when Campbell left the town of Centre, or as to the period of his absence. Though the court may conclude that a witness may give his judgment from surrounding circumstances, as to the time when an event occurred, or as to length of time, yet, it is evident that, here, the question to the witness and his answer are illegal, because they do not ask or give his judgment founded upon the surrounding circumstances, or upon the impressions on his mind at the particular time. There may, possibly, be a knowledge of time, and of duration of time, derived from surrounding circumstances, which strike every man, and about which there is so much uncertainty that it is difficult to distinguish it from belief. In this instance, the witness was precluded, by the form of the question, from answering from even such knowledge, and was restricted to his “ opinion,” which may have been derived from rumor, from calculations subsequently made, based upon the representations of others, or from some other illegitimate source. 1 Green. Ev. 488 §440; 1 Phil. Ev. 226, 227, (top p. 209 ;) Head, use &c. v. Adams, 9 Ala. ft. 791, in which ease “belief” *52is used as synonymous with “best recollection,” or “knowledge” about which the witness was not positive ; Cameron & Cooper v. The State, 14 Ala. R. 646 ; Jones v. Hatchett & Bro., ib. 744 ; Hatchett & Bro. v. Gibson, 18 ib. 687; Andrews & Bro. v. Jones, 10 ib. 470 ; 4 75. 46 ; 6 75. 546; Hawthorn v. King, 8 Mass. R. 371.

It is competent for a witness to prove a fact which is the result of a combination of .minor facts ; and, in this point of view, it might, possibly, have been competent for the witness to state, from the position of the sun with reference, to the cardinal points of the compass, or from the length of the shadows cast, or from other circumstances which are recognized criteria in the determination of time, that his best knowledge, (or, possibly, his best judgment,) was, that Campbell left at a given hour, and was absent during a given time. But, in this instance, the witness gives “ his opinion” without reference to. such facts, or to any facts. — 14 Ala. R. 360 ; 75.154; 10 75. 290; 4 Har. & McH. 63, 64; 6 Conn. 9 ; 1 Stark. Ev. mar. p. 127.

The “opinion” of the witness as to time and length of time, was, prima facie} incompetent. If there was any additional matter that would have made the question legal, it was the duty of the State to have added it. Evén though it bo allowable to ask a witness his “ opinion” of time, as predicated upon facts within his knowledge, the question propounded to Street was inadmissible, because he'was not asked for his “opinion” deduced from facts within his own knowledge, but for his opinion generally. Certainly, the opinion of a witness as to time cannot be asked, unless he is referred to facts upon which to base his opinion. It is, however, earnestly insisted, that it is not competent in any case, saving a few exceptions, for a witness to state his judgment even on facts known to himself: it is his duty to state the facts, and leave the jury to draw the conclusion, or form the judgment. — Bullock v. Wilson,. 5 Porter,342 ; Given v. Albert, 5 Watts & Serg. 333 ; Garrett v. The State, 6 Miss. 1. Distance is susceptible of certain ascertainment.

Asa Allen should not have been permitted to say that the shoes “ seemed to fit in every particular.” It is not a statement from knowledge, but an inference or conclusion.

Allen’s, statement, that Campbell “ occasionally visited his house, but not So often as others,” was totally irrelevant; it *53had no bearing on the case in any way, and ought to have been excluded. Even though an inference against the prisoner might possibly be drawn from his unaccustomed presence at Allen’s house about the time of the adjournment of the Sunday school, yet there is no predicate for such an inference: it was not shown that the school was in session. His presence, an act harmless in itself, authorized no inference against the prisoner. His presence at any other place in the town of Centre, would have afforded the same evidence, as it might be said that he visited that place “ occasionally, though not as often as others.” The relevancy of testimony is a question to be determine d by the court at the time the testimony is offered. -If it ‘ is then prima facie irrelevant, the preliminary facts connecting it with the case must be proved, or the counsel must state their intention or expectation of proving them. — Bilberry, adm’r. v. Mobley, 21 Ala. R. 2|7!7 ; Abney v. Kingsland, 10 ib. 355; Scott v. .Coxe’s Adm’rs, 20 ib. 295; Lawson & Swinney v. The State, 20 ib. 65 ; 9 ib. 534 ; 16 ib. 816 ; 6 ib. 390.

The testimony of Coggins, as to stains on a shirt, was irrelevant. It could have no pertinency to the case, unless it had. been shown, 1. that the stains were from blood; 2. that the shirt was Campbell’s ; and, 3, that he wore the shirt on the day of-the murder. None of the preliminary facts necessary to connect this evidence with the case were proved. 'The testimony conduced to show that the stains were not of .blood. The facts that Campbell had been occasionally seen at Mrs. Matheny’s house, that no man lived about the house, that Campbell had at one time been seen there, shaving and changing his clothes, that he had also been seen, on the morning preceding the evening when the shirt was seen, coming from towards Mrs. Matheny’s, and that the witness knew no person in the neighborhood who wore so fine a shirt, do not collectively prove, tp the satisfaction of any mind, that the shirt was Campbell’s. There was not even an. attempt made to show that Campbell wore the particular shirt seen by the witness on the day of the murder. The authorities are clear, that the preliminary facts must be proved to the satisfaction of the mind of the court. It is not sufficient that there is a.probability of possibility of the existence of those facts; there ought to be, at least, a preponderance of evidence in favor of the hypothesis that the facts are true. In the case *54of Scott v. Coxe’s Adm’rs, 20 Ala. R. 296, there was a very high degree of probability of the correctness of the facts showing the legality of the proof, and a total impossibility of obtaining better evidence to establish the claim; yet the court say: u It is not sufficient that there may be some evidence tending to establish the preliminary fact; it must be established to the satisfaction of the court by competent proof.” — Hart v. New-land, 3 Hawk’s R. 122; 11 Serg. & R. 134; U. S. Bankv. Corcoran, 2 Peters’ R. 132 ; Jackson v. Norris et al.. 7 Cowcn’s R1 717.

If it is contended that the relevancy of this evidence is shown by the testimony of Miss Matheny, and that therefore there is only error without injury, the answer is : I. Miss Matheny was introduced as a witness by the defence, and not by the State. In the case of Lawson & Swinney v. The State, 20 Ala. R. 78, the precise question here presented did not arise, as the connection was made by the testimony of the State. Whenever the court admits illegal evidence, and thereby, in effect, asserts that it ought to influence the minds of the jury, and thus compels the defendant to submit to the injurious consequence of such evidence, or to meet and rebut it by the introduction of counter evidence, injury is sustained. Compelling a party wrongfully to enlarge the area of the examination, and to accumulate evidence upon an irrelevant subject, is error, from which the court must presume that injury resulted. In this instance, if the shirt seen by Coggins did belong to Campbell, it was in the power of the State to prove it by introducing Miss Matheny. But, instead of introducing her, the State procures the admission of irrelevant evidence, and thus compels the defendant to introduce her, to rebut the evidence; and the State is thus enabled to assail her credibility, and obtain the advantage of the legal position that the portion of her evidence in favor of the accused, and in conflict with that of Coggins, must be disbelieved, and that portion which militated against the accused must be credited.— The effect is, to compel the accused to introduce a witness who makes the connection, and then deprive him of the benefit of the testimony when it favors him. If awritten instrument, to which there was a subscribing witness, were offered in evidence, and it was admitted by the court without proof of its execution, would this court hold it to be error without injury, if the other party *55should introduce the subscribing witness, to prove that the instrument, although actually executed, was procured by fraud or duress 7 And would the court hold this when an attempt was made to discredit the subscribing witness by the very party who was bound by law to introduce him 1 II, The testimony of Miss Matheny does not prove that the shirt which Coggins saw was Campbell’s : she only proves that Campbell left a shirt with her on Tuesday morning, and that she washed it on that day ; but she does not prove that that was the only shirt she washed that day, or that it was the shirt which Coggins saw, or that Coggins ever saw the shirt which she washed. III. It was not only essential for the State to show that the shirt seen by Coggins was Campbell’s, but also that Campbell wore it on the day of the murder. It would bo inconsistent with the law, which presumes a man innocent until his guilt is shown, to shift xhe onus of proof, by requiring the accused to show that he had not left with Miss Matheny the shirt which he wore on the day of the murder: the onus was on the State. — Innerarity v. Byrne, 8 Porter’s R. 180. IV. There was no proof that the stains were at all similar to those produced by blood.

If an error is shown to exist, it devolves on the other party clearly to show that such error did not and could not injure the prisoner. If the error could possibly have injured the accused, this court will reverse. — 14 Ala. R. 182; 15 ib, 623 ; 21 ib. 423 ; ib. 549; 8 Porter 180. The bill of exceptions states enough to show that the court erred in the admission of Coggins’ testimony as to the shirt. It cannot be intended by this court, in the absence of a statement to that effect in the bill of exceptions, that there was other evidence which would have made it legal. — Davis v. The State, 17 Ala. R. 415.

The question propounded to Coggins, ‘ If any person asked him if he knew what would take stains out of shirts,’ was clearly illegal, because it asked for the declaration of a third person, and involved an inquiry'totally irrelevant to the case; it was well calculated to injure the defendant by making the impression that some person was solicitous on the subject of “ stains on shirts.” So, also, the reply of Coggins to the question of a third person was, in no point of view, competent evidence.— Winlock v. Hardy, 4 Litt. 272.

A conviction for libel in the courts of a sister State, either renders a witness incompetent to testify, oris admissible evidence *56to the jury as affecting his credibility. Upon the question of competency, the following authorities are referred to : The State v. Ridgley, 2 Har. & McH. 120; Clarke’s Lessee v. Hall, ib. 378 ; Cole’s Lessee v. Cole, 1 Har. & John. 572 ; The State v. Candler, 3 Hawks’ R. 393 ; 1 Bouv. Law Die. 396 ; Roscoe’s Crim. Ev. 135 ; 1 Phil. Ev. 22, 23; Rex v. Ford, 2 Salk. 690; 3 Phil. Ev. (Cowen & Hill’s Notes) 1503.

Although the court may conclude that libel is not a species of the crimen falsi, according to the common law, which is presumed to prevail in Ohio, yet the conviction for an offence not infamous, committed in a sister State, is competent evidence to affect the credibility of a witness. In cases where the infamy of a conviction is removed by a pardon, the conviction is evidence as to credit. In Massachusetts, where the courts hold that the disqualifications which attach to a conviction of an infamous crime in another State, do not apply to the felon when offered as a witness in that State, the conviction is competent evidence as to credit. The reasons of the rule, that particular acts of immorality cannot be proved on the trial, do not apply to record evidence of a conviction of crime. If the evidence here offered is not admissible to affect the credit of the witness, it would follow that a witness may be convicted, in a sister State, of acts involving moral turpitude, until he would not he credited as to the most trivial concerns of life, and yet may cross the State line and testify in a criminal case as a credible witness, because depositions cannot be taken to establish his bad character in the locality of the convictions. — Commonwealth v. Abner Rogers, 7 Metcalf’s R. 501; Commonwealth v. Knapp, 9 Pick. 511; Commonwealth v. Green, 17 Mass. 502; Carpenter v. Nixon, 5 Hill’s (N. Y.) R. 260; Sorrelle v. Craig, 9 Ala. 528; Holman’s Heirs v. Bank of Norfolk, 12 Ala. 408; United States v. Jones, 2 Wheeler’s Criminal Cases 451.

The determination of the question of Stiff’s insanity, and consequent incompetency to testify, was for the court. — Livingston v. Kierstead & Hermanee, 10 Johns. 261; Roscoe’s Criminal Evidence 124 ; Harris v. Wilson, 7 Wend. 60 ; Witter v. Latham, 12 Conn. 392; Reynolds v- Lounsberry, 6 Hill 534; 1 Green. Ev. 472. The evidence adduced to the court to establish Stiff’s insanity, is submitted without argument, because the limits of a brief will not permit a full discussion of it. The *57court is referred on this subject to Ray’s work on Insanity.

The jury were entitled to know the mental status of the witness, in order to correctly ascertain the degree of confidence to be placed in his testimony. On that account, the evidence on the subject of insanity should have been allowed to go to them. Facts proving the mental and moral condition of a witness have often been admitted as evidence. — 10 Serg. & R. 285 ‘, 15 Mass. 184.

The question propounded to Thomas B. Cooper, whether he had furnished a portion of the facts contained in the pamphlet, was illegal and irrelevant.

The question of sanity involved the inquiry as to the condition of the witness’ intellect at the time of the trial. L. M. Stiff had seen Ms father but twice before the trial in three or four months. No previous degree of intimacy would render his opinion on the question of sanity competent at the time of the trial. It is not improbable the excitement of the trial may have elicited a manifestation of insanity, which had not been witnessed for a long time before. The opinion, however, was not asked, as founded upon the facts within his knowledge, but was sought and obtained without reference to those facts. — Norris v. The State, 16 Ala. 776; Baldwin v. The State, 12 Missouri 234.

It was clearly competent for L. M. Stiff to state whether or not there .was inconsistency between the professions and acts of the witnSbs whose sanity was controverted. It is unaccountable' that he should be competent to give his opinion upon the question of sanity, and yet incompetent to answer the question propounded. — Norris v.' The State, supra % Baldwin v. The State, supra.

The fact of Weir’s visiting the jail twice, was totally irrelevant. The simple statement was, that Weir went to the jail twice; but these visits are not shown to have been to Campbell, or to have had any connection with him in any way.

Stiff had deposed to confessions made by the accused. After the rumor had gone forth, that such confessions had been made, an interview took place between him and Campbell on the subject of these confessions. For the purpose of discrediting the witness, the defence asked,. ‘ What did Campbell say on the particular occasion,’ with the announced purpose of bringing out the reply of the witness. It is now insisted, that this was com-*58petent evidence, because the reply of the witness to the prisoner could not have been understood without a disclosure of the matter to which it was a reply. • Admissions may be drawn from the conduct, actions and declarations of a party ; and so, also, of a witness. The question was confined to the subject of the confessions proved by Stiff, and its purpose was simply to discredit him. — 1 Green. Ev. 514 §462.

The permission of the witness to testify as to the secret motive for the conduct which was relied on to discredit him, was objected to. A witness must testify as to facts, and not as to the secret emotions of his mind. Can the impeachment of a witness be avoided by the statement that his intentions are pure 'l If not, for what purpose could such evidence be admissible % No conviction for perjury could ever be had on account of a false statement of the sentiments or feelings of a witness. — P. & M. Bank of Mobile v. Borland, 5 Ala. 546 ; Peake v. Stout, Ingoldsby & Co., 8 ib. 648.

The declarations of the witness Blanton conflicting with his testimony, were incompetent for any other purpose than to impeach him. It is not allowable for the State to impeach its witness, under the guise of refreshing his memory. The place at which the declaration was made, was not stated to the witness.

It was competent to prove that the witness Clayton had been drinking at the time he was testifying, or at the time of the occurrences which he proved; but the general question of “his habits as to drinking,” was inadmissible. The same argument that would prove the competency of such evidence, for the purpose of showing the state of his mind, would prove the competency of the evidence of insanity offered to affect the credit of Stiff.

The witness Clayton should have been allowed to state the appearance of Campbell, and his acts, when the intelligence of the murder was communicated to him. The State had been permitted to prove how a horse-shoe “seemed” to fit a track.— This court has decided, it was but to pronounce the judgment of the witness upon a passing event, and “ is knowledge, so far as the imperfections of human nature will permit knowledge of such a matter to be acquired.” Baldwin v. The State, 12 Miss. 288. The appearance of an accused man is evidence *59against Mm, and certainly ought to he evidence in his favor.— Johnson v. The State, 17 Ala. 618. The State had been permitted to introduce the same kind of evidence, as to Campbell’s looks and appearance, which was proposed for the defence. — - Harris v. Taylor, 13 Ala. 324.

The question propounded to W. B. Watts was, certainly, a proper one, because it is in itself competent evidence, and because it was rebutting to evidence brought out by the State. It would be manifestly unjust, to permit the State to prove that public rumor imputed to the assailed witness certain moral delinquencies, not involving his veracity, leaving the impression that public rumor imputed no other immorality, and then debar the defence from eliciting proof of other moral delinquencies, which deprived the witness of all claim to credibility.

The question, ‘ What does rumor say in regard to those publications,’ was legitimate. Certainly it was admissible in response to the cross-examination in reference to those publications. It is submitted to the court, whether the question calling for the witness’ “ knowledge of the truth of those publications,” was not permissible in reply to the cross-examination by the State.

It was legitimate for the defence to extend its inquiry into Stiff’s character as far back as possible, and, in doing so, to propound the question, ‘ What does rumor say of his general character before he came to Cedar Bluff.’ The State opened the inquiry as to what rumor said of Stiff’s character, and obtained the full benefit of it. Is it not manifestly unjust and unlawful, to permit the State to prosecute the inquiry just so far as suited its interests, and then to stop any extension of the investigation 1 — Taylor v. Harris, supra.

The letter to John K. Hoge was submitted to Stiff, and its authorship proved by him. The letter, then, was clearly competent evidence to contradict him. The entire spirit of it is in conflict with the idea that Campbell had confessed to Mm the atrocious crime attributed to him.

The evidence as to Campbell’s manner when informed by Sampley that suspicion attached (to him) was permissible, to rebut the proof made by the State as to his appearance. His manner and appearance, however, were competent evidence.

The card-playing, and the fact of defendant’s winning money *60in connection with William H. Stiff, were alike inadmissible, either against the defendant, or against Wm. H. Stiff’s credibility. — Johnson v. The State, supra ; Nugent v. The State, 18 Ala. 526.

The two questions which were propounded to Mrs. Shackle-ford, and excepted to, were irrelevant and improper. — ll Wend. 20.

The questions propounded to Miss Anthony, as to the places where she met the defendant, were improper. It could make no difference, so far as this case is concerned, where she met him. So, of all the questions propounded to this witness by the State to which exceptions were saved. The entire examination of this witness seems to have been based upon the idea, that friendly relations with the accused were sufficient grounds for the impeachment of her credit.

It was not competent to ask Jane Matheny whether she had children, she being an unmarried woman. Particular acts of this character cannot be given in evidence to discredit a witness. Even her general character for chastity was not competent.— 18 Ala. 526..

The question, where Jane Matheny’s mother was on the day when Coggins said he saw the shirt, was irrelevant. So, of the question asked her, c What were you doing the day after Campbell left;’ for her acts and declarations Campbell was certainly not criminally responsible.

The map ought to have been left with the jury, to be taken out by them on their retirement. It had been admitted in evidence, was commented on, cross-examined on, and the court had charged the jury; and when the jury were about to retire, the map was taken from them, on the ground that neither the prosecutor nor the State’s solicitor was present — Nolin v. Parmer, 21 Ala. 66; Morrison v. Wright, 7 Porter 67 ; Lankford v. Keith & Weir, 21 Ala. 342. The map was put in evidence, and was not withdrawn; nor was it asked to be withdrawn. The question is not .as to its competency as evidence, but whether, being evidence, the jury should take it out with' them on their retirement. — Clay’s Digest 341 § 155.

It was not permissible for the State to prove, by M. Hail, that he did not desire the conviction of an innocent man, for the purpose of counteracting the proof of his hostility to the ac*61cused. The proof admitted and excepted to, in the connection in which it came out, was tantamount to this: £ I think the accused guilty — I do not wish to convict an innocent man — I do not deem the accused innocent, and therefore I desire his conviction.’ This testimony is objectionable, also, because the moral sentiments of a man must be inferred from facts, and cannot be proved by a profession of them. How could such testimony be disproved1? An impeached witness is safe, if his professions sustain his credibility.

The question asked Gaines, £ What had Stiff done to give him a bad character,’ was illegal.

The fact that Cole had made a relation of his evidence to the counsel for the accused, did not tend to impeach him. There was no impropriety in his doing so, and it was, in no point of view, a proveable fact in the case.

The question to Counts was illegal.

P. T. Sayre, for the Attorney General, with whom was L. E. Parsons, contra :

Exceptions 1 and 2. There was no error in allowing a witness to state his opinion as to the time of day, or as to the duration of time. There is no other way of proving when an event occurred, or the length of time which transpires between certain events. These are matters of general experience, knowledge of which is gathered by observation, and can only be proved by opinion. Persons who never saw a time-piece, and who are unacquainted with figures, are capable of arriving at very correct conclusions as to time, although they may be unable to explain the particular process by which their conclusions were attained. — Lester v. The Town of Pittsford, 7 Vermont R. 161; McKee v. Nelson, 4 Cowen’s R. 357; 1 Phil. Ev. 291; 1 Green. Ev. § § 7, 11; 2 U. S. Digest 259, § 1267.

Ex. 3. It is difficult to see any objection to the form of expression used by the witness, who testified that he saw the horseshoe applied to the tracks, and that they *£ seemed to fitit was only another way of saying that they did fit.

Ex. 4. The testimony of Asa Allen, that Campbell visited his house ££ occasionally, but not as often as others,” was properly admitted. This proof was material and relevant, when taken in connection with the other proof in the case. It was *62shown that a person standing in the door of Allen’s house could see when the Sunday school adjourned, and that Campbell was at his house during the morning, and left it about the time when the school usually adjourned.

Ex. 5 and 6. Coggins’ testimony was properly admitted. The object was, to connect Campbell with the murder; and every fact and circumstance which could possibly throw any light upon the matter, was admissible. Coggins’ testimony, all taken together, conduced to show that Campbell was in the habit of going to Mrs. Matheny’s house ; that he was there on Monday night after the murder, that he sometimes changed his clothes there, that no man lived about the house, and that the shirt seen by Coggins was unlike those commonly worn in that neighborhood. These facts were persuasive, if not conclusive, to show that the shirt belonged to Campbell. At all events, the testimony was competent to go to the jury. Testimony ought not to be excluded from the jury on account of irrelevancy, unless it is clearly irrelevant. — Shannon v. Kinney, 1 A, K. Marsh. 3; 2 Watts & Serg. 415; Bell v. Rhea & Co.,1 Ala. R. 85 ; Cuthbert v. Newell, 7 ih. 459 ; 21 Wend. 548 ; Cowen & Hill’s Notes, Part I, 433. The evidence of Coggins was introduced for three purposes, viz: to establish that the shirt belonged to Campbell; that there were stains upon it; and that it was being washedjjfor the purpose of removing stains. Not only the appearance of the shirt itself, but every thing that was said about it in connection with stains, while it was being washed, was"therefore admissible, to show that there were stains upon it, and that the object in washing it was to remove them. The conversation was a part of the res gestee, and served to explain Miss Matheny’s possession of the shirt. — 19 Ala. R. 727 ; Enos v. Smith, 3 Conn. 250; Green. Ev. § 108. The proof also shows, that Campbell left his shirt at the house to be washed. This constituted Miss Matheny his agent for that purpose, and rendered her declarations, made while washing the shirt, admissible evidence against him, as part' of the res gestee. “ An agent is authorized to act; and, therefore, his acts, explained by his declarations during the time of acting,, are obligatory on the principal.” — 4 Serg. & R. 317. It will bo presumed that the court below required the proper predicate to be made.— McCrary v. The State, 22 Ala. R. 70.

*63Ex- 7, 8, 9 and 10. The competency of .Edward Stiff as a witness was objected to on two grounds, viz: because he had been convicted of a libel in the State of Ohio, and because he was insane. 1. At common law, conviction of a libel did not render a witness incompetent. — 7 Com. Dig. 462; 1 Phil. Ev. 24. Under our statute, a witness is not disqualified for that reason. — Clay’s Digest 169 § 2. But if the law was different, a conviction in Ohio would not have that effect in this State. — Commonwealth v. Green, 17 Mass. 541. The question of insanity was properly determined by the court, as the preponderance of proof was certainly in favor of the sanity of the witness at the time of trial.

The record of conviction, and the evidence offered to the court on the subject of insanity, was not admissible evidence to the jury to affect the credibility of Stiff as a witness. In impeaching a witness, his general character only can be put in issue.— Particular acts of moral turpitude cannot be proven. — 1 Green. Ev. § 461; 1 Phil. Ev. 291; 4 Wend. 257. Libel is not an infamous crime, and a conviction of it would not tend to affect the credit of a witness any more than the proof of any other falsehood, told by him, which is not of record. At common law, the truth of the libel could not be given in evidence. In inquiring into general character, three questions, it is-said, may be ashed: 1. What is the general character of the witness for truth when upon oathl 2. What is his, general character for truth when not upon oath 1 3. What is his general moral character I — Cowen & Hill’s Notes, Part I, note 531. .Applying these tests to the testimony, it surely, does not come within the rule. The record of conviction does not prove that the general character of the witness for truth and veracity, was bad; neither does it establish that his general moral character was bad. If it establishes neither of these points, it was incompetent.

The same reasons obtain in reference to the evidence on the subject of insanity. The law does not recognize any degree of insanity ; it does not say that a man is sufficiently sane for one purpose, and insane for another. When insanity is established, it is presumed to be the general condition of the mind. This is a fact, too, upon which the court must decide before the witness is examined; and when it is decided that he is sane, he is a witness, governed by the same rules which apply to all other *64witnesses. The.mere fact that his sanity has been questioned, does not authorize an attack on his character in a manner different from that- prescribed for impeaching other witnesses. The court had decided that Stiff was sane; and the attempt was, to induce the jury to overrule the decision of the court. The issue of insanity vel non, had been once determined by the court, and the proposition is then made to try the same issue again before the jury.

Ex. 11. T. B. Cooper'was asked, on cross-examination, if he had not furnished Stiff with a portion of the facts contained in the pamphlet. The exception to this testimony was properly overruled. The object was to establish Stiff’s insanity, partly by the contents of the pamphlet about which Cooper testified; and if the facts upon which that pamphlet was based, were furnished to him by Cooper, it would certainly tend to relieve the witness, in some degree, from the charge of insanity based upon the pamphlet. Besides, this was a preliminary examination by the court, in which a judge is not governed by the strict rules of evidence. — Hartford V. Palmer, 16 Johns. 144; Givens v. Herndon, 16 Ala. 261.

Ex. 12. L. M. Stiff was properly allowed to state his opinion as to his father’s sanity. Edward Stiff returned from Cuba in 1851; his son swore that he had seen him repeatedly since that time, and twice during his confinement at Lebanon. Besides, he was qualified to give an opinion because he was his son. — Norris v. The State, 16 Ala. 776.

Ex. 13. The defendant asked L. M. Stiff whether there was not an inconsistency between the professions and acts of his father. The exception to this question was properly sustained, as the answer to it could only have been the statement of an opinion of the witness. He should have been asked, what were the professions and acts of his father, that the jury might form their own conclusion as to their consistency or inconsistency.— Johnson v. The State, 17 Ala. 623.

Ex. 14. The testimony covered by this exception was properly admitted. A man’s flight after an offence is committed, may be proven against him, as a circumstance tending to show guilt; and, upon the same principle, an attempt to escape from custody, or the expression of an intention to escape, is a circumstance which may be proven for the same purpose, — The *65People v. Rathbun, 21 Wencl. 518; Oliver v. The State, 17 Ala. 587, 595.

Ex. 15. The conversation which occurred in the jail between Stiff and -Campbell, and all that Campbell said on that occasion, was properly rejected as evidence. The State had introduced no proof in reference to that interview, and had brought out no part of that conversation: the court, therefore, properly excluded it. — Oliver v. The State, 17 Ala. 595 ; McLane v. The State, 16 ib. 672; Bradford v. Bush, 10 ib. 389; Tilley v. The State, 3 Iredell 424.

Ex. .16. An attempt was made by the defence to impeach the testimony of Stiff, by showing that he had made contradictory statements; and the court then allowed the State, against Campbell’s objection, to prove by the witness his motives in making the statements which were said to be contradictory. There was nothing wrong in this. — 1 Phil. Ev. 294 ; 1 Green. Ev. § 467.

Ex. 17. A witness has a right to refresh his memory by looking at a memorandum; so, if his memory appears at fault, it is not erroneous to refer 'him to any fact or circumstance by which it may be refreshed. This was all that was done in reference to the witness Blanton. The witness had a right to refresh his recollection by all legal means, and the State had the same right; and this, after cross-examination. — 1 Green. Ev. § § 462, 467.

Ex. 18. Clayton, a witness for the defence, was asked by the State as to his habits of drinking, to which the defendant excepted. This was not erroneous. The object was, to ascertain a fact by which to test the capacity of the witness for observing things that transpired around him, and of remembering them afterwards. Any question may be propounded to a witness, -which will serve to show that he was or was not in a condition properly to observe or to remember. For instance, if he was examined in reference to a matter requiring keenness of vision, he could be questioned as to the condition.of his eyes ; if in reference to a question of science, he could be interrogated as to his proficiency in that science. So in reference to general matters; it is proper that :the condition of the witness in body and mind, at the time when the events occurred about which he testified, should appear before the jury, in order that *66bis testimony may be properly weighed. — 11 U. S. Digest 287 § 1912. The party against whom a witness is introduced,^ has a right to show every thing that may impeach his credit. — ,, 13 Serg. & R. 132. To do this, his general character as to drunkenness may be proveen, and it would be for the jury to say whether he was drunk at that particular time — Tuttle v. Russell, 2 Day’s R. 201; Brindle v. Mcllvaine, 10 Serg. & R. 285 $ 1 Green. Ev. § 446.

Ex. 19. There was no error in refusing to allow the question to be put to Clayton, ‘whether Campbell did not seem surprised when the report of the murder, &c., was communicated to him.’ — Johnson v. The State, 17 Ala. 623.

Ex. 20, 21 and 22. The questions propounded to W. B. Watts by the defence, as to the “other moral delinquencies which public rumor attributed to Stiff,” were illegal and irrelevant, and properly excluded by the court. — See authorities cited under exceptions 7, 8, 9, and 10 ; also, Cowen and Hill’s Notes, Part I, 766.

Ex. 23. This exception is to the ruling of the court in excluding proof that there were six indictments for libel pending against Stiff in the Circuit Court of Cherokee. It was not competent to prove the existence of these indictments in that way : the records were the best evidence of that fact. — 1 Green. ’Ev. §457.

Ex. 24, 25 and 26. The letter written by the witness Stiff to Hoge, was properly excluded, because the proof shows that it was written in Campbell’s presence, and by his direction. It contained, therefore, Campbell’s own statements and opinions, and not those of Stiffand consequently it could not establish that Stiff had made contradictory statements, or expressed different opinions.

Ex. 27. For this point see exception 18.

Ex. 28. The State proved that Wm. H. Stiff and Campbell played at cards with one Vaughan on the evening of the day on which the murder was committed. The witness was also asked, if he and Campbell did notwin some money from Vaugham, and answered affirmatively. The question was objected to as irrelevant. Taken by itself, this evidence might be irrelevant; but an effort was made to impeach the testimony of Edward Stiff, who p'roved certain confessions of Campbell’s, and it was *67therefore proper to allow proof of every circumstance tending to corroborate his statements : this was the only purpose for "Which it was offered. Edward Stiff had sworn that Campbell, while making said confessions, used this language: u The world was easily humbugged ; himself and Buck Stiff had won, on the same Sunday the murder took place, Vaughan’s horse and money, and made him believe he was his friend all the time.” Stiff was in jail at the time the playing took place, and had no opportunity of knowing anything about the matter, except what Campbell told him. Proof that part of what he said was true, is, at best, a corroborating circumstance to which the jury may look. — Cowen & Hill’s Notes, Part I, 119.

Ex. 29, 30, and 31, were taken to the testimony of Mrs. Shackleford, during her cross-examination. It was competent to make any inquiry calculated to throw light on the subject, or to show the feelings of the witness towards the prosecution or the prisoner. — Cowen & Hill’s Notes, Part I, 113 ; 1 Green. Ev. §446.

Ex. 32 to 42. The same rule applies to all the exceptions which were taken to the testimony of Miss Anthony.

Ex. 43 to 46, were to the testimony of Miss Matheny. Some degree of intimacy was shown to exist between her and Campbell; her testimony differed from that of Coggin, and it was perfectly proper to apply to her every test known to the law. — 1 Cowen & Hill’s Notes 129.

Ex. 41. The court properly refused to let the survey go to the jury. It was not an official survey, and possessed none of the dignity of documentary evidence. It was a survey which the law did not require the surveyor to make, and was therefore ex parte. — Surget v. Little, 5 S, & Mar. 329. No notice was given to any one representing the State, that such a survey would be made; and the mere fact that it was made by the legally appointed surveyor, lends it no weight or authority, the act not being official. This view is not opposed to the case óf Nolin v. Parmer, 21 Ala. 66.

Ex.50, 51. When witnesses are introduced for the purpose of impeaching character, it is always permissible, on cross-examination, .to ascertain the grounds on which they base their opinion.

Several other exceptions were taken to the rulings of the court, but there does not appear anything objectionable in those rulings.