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tending to connect the defendant with the commission of the offense. Ross v. State, 74 Ala. 532; Bass v. State, 37 Ala. 469.
The defendant further complains that the counsel for the state, in addressing the jury, transgressed the limits of legitimate discussion, and that the court failed to interfere. A presiding judge is called on to perform a most delicate and responsible duty when required to interfere with the freedom of argument, which is the privilege of counsel. Much must be committed to his sound discretion as to the course and character of the debate which should be allowed on the trial of a case, whether civil or criminal. When, however, there occurs an unwarranted abuse of the privilege, it becomes the imperative duty of the judge to restrain and rebuke, and by positive and explicit instructions disabuse, as far as practicable, the minds of the jury of any prejudicial impression. If, on objection being made, he fails to do so, such failure will work a reversal of llie judgment, if injustice to the accused is the probable result. It is both the duty and right of counsel to present the case of his client as fully and forcibly as the evidence, its tendencies and the inferences therefrom, may justify. Within these limits, the widest range of discussion should be accorded; but appeals to the prejudices, not pertaining to the case, and not based on the tendencies and inferences of the proof, should be discountenanced by the courts, and the administration of the law protected against discredit and debasing influences.
With a proper regard for the privilege of counsel, and the value of legitimate debate, in the ascertainment of truth, this court has declared that counsel keep within legitimate bounds, when on the one hand they invoke the mercies of the law and the benefit of reasonable doubts, and on the other urge a fearless and unflinching administration of the criminal law, avoiding all gross and unwarranted vituperation, abuse, and appeals to prejudice. In order that a statement may come within the rule which prescribes the limits of fair discussion, “the statement must be made as of fact. The fact stated must be unsupported by any evidence, must be pertinent to the issue, or its natural tendency must be to influence the finding of the jury." Cross v. State, 68 Ala. 476; Insurance Co. v. Allen, 80 Ala. 571, 1 South. Rep. 202. A careful examination of the record fails to show that the statements of the counsel, made in the opening argument to the jury, fall within the rule. They may be somewhat harsh, made in the heat of debate, but they were not unsupported by the evidence. Counsel for defendant, in addressing the jury, referred to Phillip's Famous Cases of Circumstantial Evidence, and to two cases which occurred, one in the county of the trial, and the other in an adjoining county. The remarks of the prosecuting counsel, in the concluding argument, which were objected to, appear to have been strictly in reply to this allusion of counsel for the accused. They were intended to fortify the jury against the influence of such considerations, and to urge a decision of the case according to the law and the evidence. It does not atfirmatively appear that counsel abused their privilege, or that it was the duty of the court to interfere. Furthermore, the court instructed the jury, ex mero motu, that they must look to the testimony of the witnesses, and not to the statements of counsel, for the facts.
We have considered all the questions which counsel have deemed important and material enough to be urged in argument. We may remark, however, that we have carefully considered the other exceptions to the rulings of the court shown by the record, and find no reversible error.
Ports et al. 0. COLEMAN.
(Supreme Court of Alabama. December 17, 1888.)? 1. NEGOTIABLE INSTRUMENTS-PAYMENT-EVIDENCE_VENDOR AND VENDEE.
Where a vendee gives a note for the price, which is a lien on the land sold, the possession of such note by one purchasing the land from the vendee is prima facie evidence of payment by one of them, and, the note being found among the papers of such purchaser after his death, it was presumptively in his possession while
living. 2. EJECTMENT-EVIDENCE-POWER OF ATTORNEY.
A power of attorney authorized the making of a deed to certain land, " also they being the lands sold by H.," etc. In ejectment, held, that the blank did not render the power inadmissible in evidence, and that, as it related to part of the land in controversy, its relevancy was not impaired by the fact that it did not em
brace the entire tract. 3. DEPOSITION-AFFIDAVIT.
An affidavit that “a material part of the defense to said action depends exclu. sively on the evidence of said witness” is sufficient to authorize the taking of a deposition; that circumstance being expressly made a ground for taking a deposi
tion by Code Ala. 1856, 5 2801, subd. 5. 4. SAME-WAIVER.
Where cross-interrogatories are filed without making any objection as to notice of the time and place of taking a deposition, the objection is waived. It cannot be
first raised at the trial. 5. SAME.
A motion to suppress because the witness was a resident of the county of trial when the deposition was taken is properly overruled, under Code Ala. 1886, $ 2801, subd. 5, authorizing the taking of the deposition of such resident on the ground stated in the affidavit therefor. Such motion is a waiver of the objection that the deposition is de bene esse, and cannot be introduced if the witness is shown to be
alive, and to reside in the county at the time of trial. 6. Lost DeeD-EVIDENCE.
Interrogatories asking for the “substance" of the contents of a lost deed are not objectionable, the answers showing the substance of a valid deed, with the opera tive words, "granted, bargained, and sold," and Code Ala. 1876, $ 29+8, providing that any written instrument is effectual to transfer the legal title, if such is the in
tention of the grantor to be collected from the entire instrument. 7. SAME.
In civil cases, it is sufficient that the evidence of the contents of a lost instrument
is satisfactory. Proof beyond reasonable doubt is not necessary. 8. SAME.
But parol evidence of the contents of an alleged deed is inadmissible, where its execution or the genuineness of the signature is not established. Appeal from circuit court, Talladega county; LEROY F. Box, Judge.
Action by Sumner A. Potts and others against Thomas H. Coleman, to recover 1,116.85 acres of land, consisting of section 15, and parts of sections 14, 11, and 22, in township 20, range 3 E. The defense was limited to about 700 acres, and a disclaimer was entered as to the residue. Plaintiffs sued as the heirs at law of Isaac Hudson, who died intestate, May 13, 1865, and of his only child, Edward M. II udson, who died intestate, October 23, 1861.
Plaintiffs introduced evidence that Isaac Hudson was in possession in 1845. under claim of ownership, and put Edward in possession in 1849; that Edward remained in possession until 1852, and sold the land to J. M. Roberts on credit, taking notes for the price, and giving bond to make title on payment; that Roberts sold two or three years afterwards to J. H. Bradford and B. A. Smoot, who assumed the payment of the price; that Smoot released his interest to Bradford, who afterwards sold to H. W Coleman and F. A. Butt; that H. W. Coleman died in possession, beiore the commencement of the suit, and defendant claims his interest in the land.
Defendant offered in evidence a power of attorney, executed by Isaac Hudson to M. M. Duncan, which was dated December 30, 1859, and contained the
1 Delay in publication caused by temporary inability to obtan copy
following: "I hereby authorize and empower said attorney to make, or cause to be made, in my name, to H. W. Coleman and F. A. Butt, a warranty titledeed to the following lands, situated in Talladega county, Alabama: Section fifteen, township twenty, range three east; also ; they being the lands sold by E. M. Hudson to the said J. M. Roberts in 1852. By this power of attorney it is intended to confer upon the said attorney as ample power to execute warranty titles in fee-simple to the above lands as I myself have; the said title to be made whenever the said parties pay to said Duncan a promissory note for $5,000, made by J. M. Roberts on October 25, 1852, payable to Edward M. Hudson.
Plaintiffs objected, “ because a blank space of one line followed the word “also,' and it showed on its face that it was not complete when it was signed, and did not describe or include all the lands intended to be contained in it." Ohjections overruled.
The court received in evidence, over objection, the Roberts note; it having been proved to have been found among the papers of H. W. Coleman after his death. Defendant offered the deposition of one Nix, the affidavit for taking which stated that Nix “is a material witness for the defendant in said cause, and that a material part of the defense to said action depends exclusively on the evidence of said witness." Plaintiffs had previously moved to suppress the deposition, (1) because the affidavit and deposition show that the witness resided in Talladega county at the time of the application, and at the time of the examination; (2) because the affidavit does not show sufficient ground for taking the deposition; (3) because the examination, without notice to plaintiffs or their attorneys, was illegal. Objections overruled. Plaintiffs appeal.
Code Ala. 1886, § 2801, provides that “the evidence of witnesses in civil cases may be taken by deposition: * * (5) When the claim or defense, or a material part thereof, depends exclusively on the evidence of the witness." Section 2803 provides for filing interrogatories and cross-interrogatories, and for notice of the filing of interrogatories, and of the residence of the witness and commissioner; and, “on failure to give the notice herein required of the residence of the witness and the commissioner, unless the same is waiveti, * the deposition * must be suppressed.
* » Section 2802 provides for making and filing an athdavit “setting forth some one or more of the above causes,
and that the witness is material, * * and thereupon the clerk must issue a commission, * * and prescribe the notice to be given the opposite party or his attorney of the time and place of taking it.
Heflin & Bulger, for appellants. Bishop & Whitson, for appellee.
SOMERVILLE, J. We can perceive no objection to the admissibility in evidence of the power of attorney made by Isaac Hudson to Duncan, bearing date December 30, 1859. It related to a part of the land in controversy, showing authority for its conveyance to the vendees whenever they paid the remainder of the purchase money. Its relevancy was not destroyed or impaired by the fact that it did not embrace the entire tract. Green v. Jordan, 83 Ala. 220, 3 South. Rep. 513.
The possession by H. W. Coleman of the first note due E. M. Hudson by Roberts was prima facie evidence of its payment either by him or by the maker, in view of the fact that Coleman had purchased the lands upon which the note constituted a vendor's lien, and he was therefore as much interested in paying the delt as if he were the debtor. Potts v. Coleman, 67 Ala. 222. And the note, being found among Coleman's papers after his death, was presumptively in his personal possession while living. Lipscomb v. De Lemos, 68 Ala. 592; 2 Whart. Ev. $1363, 1364.
The affidavit was sufficient to authorize the taking of the deposition of the witness Nix. It alleged that “a material part of the defense to said action depends exclusively on the evidence of said witness.” This is expressly made one of the statutory grounds for taking depositions to be used in civil cases. Code 1886, $ 2801, subd. 5. The plaintiff's attorney, having crossed the interrogatories propounded to Nix, without raising any objection as to notice of the time and place of taking the witness' deposition, must be held to have impliedly waived such objection. To permit the objection to be raised at the trial for the first time would enable parties to experiment, at the expense of their antagonists, upon the testimony of witnesses, and thus often reap an unfair advantage. Aicardi v. Strang, 38 Ala. 326; Code 1886, § 2803.
It was no valid objection to certain interrogatories in the deposition that they called for the substance of the contents of the deeds alleged to have been lost. It was unnecessary to prove the words of the conveyance, and the answers of the witness.satisfactorily showed the substance of a valid deed under the statute with the requisite operative words of transfer, “granted, bargained, and sold.” “The proof of the contents of a lost paper,” as said by Chief Justice MARSHALL in Tayloe v. Riggs, 1 Pet. 591, “ought to be such as to leave no reasonable doubt as to the substantial parts of the paper.” We should say, in civil cases, the proof ought to be such as to furnishi satisfactory evidence of its substantial parts. Shorter v. Sheppard, 33 Ala. 618. Under the statute, any written instrument, signed by the grantor, or by an agent having written authority, "is effectual to transfer the legal title to the grantee, if such was the intention of the grantor to be collected from the entire instrument.” Code 1876, § 2948; Webb v. Mullins, 78 Ala. 111.
The motion, also, to suppress, based on the fact that Nis was a resident of Talladega county at the time the deposition was taken, was equally untenable, inasmuch as the statute authorizes depositions of residents to be taken on the ground set out in the atfidavit. Code 1886, § 2801, subd. 5. It is quite another matter that the deposition of a witness taken on this ground, viz., that “the defense, or a material part thereof, depends exclusively on his tes. timony," is taken de bene esse, and cannot be introduced if the witness is shown to be alive, and to reside in the county at the time of the trial. Railroad Co. v. Maples, 63. Ala. 601. The motion to suppress was not predicated on this special ground, and was a waiver of other grounds. The court did not err in overruling it. Bartee v. James, 33 Ala. 34.
We are unable, however, to resist the conclusion that no sufficient predicale was laid for the introduction of secondary evidence of the contents of the alleged deed, which was a question addressed to the consideration of the court, and not of the jury. To justify such evidence, especially when exclusively oral, the following facts must be established to the satisfaction of the court: (1) The existence and execution of the original paper, as a genuine document; (2) the substance of its contents; (3) its loss, destruction, absence from the state, or other satisfactory reason for failure to produce the original, which may be shown by such diligent search for it as would raise a reasonable presumption of such loss or absence. The one of these facts is as necessary to be proved as the other, and the failure, therefore, to prove either is fatal to the right to introduce the secondary evidence. We find in the record no satisfactory evidence of the genuineness of the paper exhibited by Coleman to the witness Nix, which he claimed to be a deed from Hudson to himself and Butt, and purporting to be executed by Duncan, as attorney in fact for the grantor. The execution of the paper is not established, and without this the introduction of secondary evidence of the contents of the lost paper is unauthorized. Comer v. Hart, 79 Ala. 389; Manufacturing Co. v. Riley, 80 Ala. 314. Nix does not testify to the hand writing of Duncan, and no satisfactory evidence anywhere appears in the record as to the genuineness of Duncan's alleged signature. Every fact testified to by Nix might be true, and yet the paper exhibited to him by Coleman might have been a forgery, or to say the least not genuine. We need not comment on the fact that Nix was testifying
as to a paper which he claimed to have seen more than 20 years before his examination. It is sufficient to say that the opinion of the court is that, under the fundamental rules governing the admission of secondary evidence, the circuit court erred in admitting the contents of the alleged deed to be proved without first requiring satisfactory evidence as to the existence of a genuine original executed by the grantor, or his written authority. For this error the judgment of the circuit court must be reversed, and the cause remanded.
CASE v. EDGEWORTII et al.
(Supreme Court of Alabama. March 2, 1889.) EJECTMENT-PUBLIC LANDS.
Under the statute of Alabama providing that all certificates issued pursuant to any act of congress, by any one authorized to issue them, upon any warrant or order of survey or for any donation or pre-emption claim, vest the legal title in the holder, and must be received as evidence of such title, a receipt in full, given by the receiver of the public moneys for the entry of land under the federal homestead laws, (Rev. St. U. S. $ 2290,) vests a legal title sufficient to support an action of ejectment, or the corresponding statutory real action. Appeal from circuit court, De Kalb county; John B. TALLY, Judge.
Statutory real astion in the nature of ejectment, by D. C. Case against E. L. Edgeworth and others. The only evidence of title the plaintiff introduced was a receipt and certificate of the receiver of the public moneys. The court charged that “if they believed the evidence they must find for the defendants,” and refused to give the general atfirmative charge in favor of the plaintiff. Judgınent for defendants, and plaintiff appeals.
Watts & Son, for appellant. Dobbs & Howard, for appellees.
CLOPTON, J. The general rule that a plaintiff in ejectment must recover on the strength of his own title, and must show a legal title to the premises, is elementary and familiar. An equitable estate or claim will not support the action. The evidence which the plaintiff introduced in support of his title was a receipt in the usual form, given by the receiver of the public moneys to him, for the sum of $14, being the amount of fee and compensation of register and receiver for the entry of the land sued for, under section 2290, Rev. St. U.S. The decisions of the supreme court of the United States, holding that until the patent issues the fee is in the government, and that a certificate of entry vests only an equitable claim, which will not support ejectment, are founded on the general rule.
Conceding that, independent of statute, a certificate of entry is not a title complete or legal in its character, there is in this state a statute which declares: “All certificates issued pursuant to any act of congress by any board of commissioners, register of a land-office, or by any one authorized by law to issue such certificate, upon any warrant or order of survey, or for any donation or pre-emption claim, vests the legal title in the holder or his assignee, and must be received as evidence of such title.” Code 1886, § 2782. This statute has been in force, with immaterial changes in phraseology, since 1812; and under it certificates given by the receiver of public moneys on the entry of public lands have been held sutlicient evidence of title to enable the holder to maintain the action of ejectment. The first case was Bullock v. Wilson, 2 Port. (Ala.) 436, in which the only evidence of title offered by the plaintiff was a receipt, which was expressed to be in full for the land described in the declaration. It was held that the receipt was within the equity of the statute, and until the patent issues was the best evidence of the plaintiff's right which the case admits of, and was sufficient evidence of title to authorize the holder to maintain an action of trespass to try title. This ruling was reaffirmed in