Fuller v. State

TYSON, J.

Under the testimony the shells were sufficiently identified as being those found near the place of the killing. They Avere, therefore, properly allowed in evidence as tending to sIioav, in connection with other testimony adduced, that defendant fired them on the occasion of the homicide.

Section 4711 of the code of 1896 makes it a felony for any person to- aid or attempt to aid any prisoner to escape from jail, confined therein under a charge or conviction of felony. Section 1795 provides that “no objection must be allowed to the competency of a witness because of his conviction for any crime except perjury, or subornation of prejury, but if he has been convicted of other infamous crime, the objection goes to his credibility.” Under section 1796, proof of the conviction may be made by the oath of the witness without production of the record. At common Iuav the conviction of a felony disqualified the witness, because the nature of the crime and the punishment rendered the Avitness infamous. — 16 Am. & Eng. Ency. Law (2d Ed.) p. 245, et seq.; Sylvester’s Case, 71 Ala. 17 . It was a felony at common law for any one to aid the escape of a prisoner charged with felony, if he had knowledged of the crime upon.AAdiich the prisoner was confined. Such assistance made the person rendering it an accessory after the fact.

The statute (section 4711 of the code) is violated without reference to the knowledge of the person who aids the prisoner .to escape of the nature of the charge under *38 which the prisoner is confined, or without respect to whether the escape is effectual or not. — Wilson v. State. 61 Ala. 15 . So, then, the conviction of the common-law offense of aiding a prisoner to escape charged with a felony, with knowledge of the crime, being a felony, would under the rules of the common law disqualify the convicted person as a witness. And an objection to the competency of such a witndss, if sustained by the trial court, would be sustained on appeal, unless the record repels the presumption that the conviction of the witness was for the common law offense. — P. & M. Ins. Co. v. Tunstall, 72 Ala. 142 . But, aside form these considerations, we entertain the opinion that a conviction for a felony made so by statute, which was not a crime at common law, may be shown for the purpose of affecting his credibility as a witness under section 1795 of the code. —Murphy v. State, 108 Ala. 10 , 18 South. 557 ; Taylor v. State, 62 Ala. 164, 165 . This conclusion is not opposed to any of our cases. There are doubtless expressions in some of them which are calculated to mislead upon a mere cursory reading, but a careful examination of them will disclose that they support, rather than militate against, our conclusions . Their misleading tendencies grow out of a discussion of the nature of the act for which the conviction is had, with respect to' whetner that act was at common law of the nature of the crimen falsi. Where the conviction is for a felony, the question as to whether the act or offense is of the nature of the crimen falsi is wholly impertinent and unimportant. That question can only arise where the conviction is for a misdemeanor, and only becomes important in that class of cases.

Applying these principles to the exception reserved to the question propounded to defendant’s witness, Henry Duncan, on cross-examination, it is apparent that there is no merit in it. There was no testimony introduced tending to show that this witness was not guilty of the charge on which he admitted he was convicted, and, .indeed, such testimony could not have been legally admitted, if offered. For' this reason, if for no other, the written charge requested by defendant was properly refused.

*39 There is no merit in the remaining exception to the ruling of the court with respect to the argument of the solicitor.

Affirmed.

Weakley, C. J., and Simpson and Anderson, JJ., concur.