Summary
In Gordon v. State, 252 Ala. 492, 493, 41 So.2d 610, 611, is found a statement that: "It is true that a written confession requires no signature by the defendant, * * *," but this court in that case affirmed the Court of Appeals which held that although defendant had signed the original, an unsigned carbon copy of a confession was erroneously received in evidence in the absence of an accounting for nonproduction of the original signed statement.
Summary of this case from Tiner v. StateOpinion
6 Div. 865.
June 30, 1949.
A. A. Carmichael, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the petition.
Testimony of witnesses concerning confessions of one accused of crime is always received as an exception to the hearsay rule. 1 Wharton, Crim.Evi. 675; 5 Wigmore, Evi. (3d Ed.) 280; 20 Am.Jur. 419. Carbon copy of a writing made on typewriter in one mechanical operation is an original duplicate, and may be introduced without violating the best evidence rule. Sandlin v. Anders, 205 Ala. 453, 88 So. 560; 2 Jones, Evi. 1467; Campbell Motor Co. v. Brewer, 212 Ala. 50, 101 So. 748; Sovereign Camp, W. O. W., v. Holmes, 219 Ala. 560, 566, 122 So. 686; Burnett Cigar Co. v. Art Wall Paper Co., 164 Ala. 547, 51 So. 263. Since confessions are not required to be signed, a signature adds nothing if it is otherwise shown that accused made the statement. 16 C.J. 732; 22 C.J.S., Criminal Law, § 833, page 1456. Haines v. State, 158 Fla. 9, 27 So.2d 414; any witness having read the stenographer's transcription, as well as the stenographer, should be allowed to state that it is correct, if such witness were present at the time the transcribed event took place. Mayhall v. State, 22 Ala. App. 223, 225, 114 So. 361; Taylor v. State, 249 Ala. 130, 30 So.2d 256.
Beddow Jones and G. Ernest Jones, Jr., of Birmingham, opposed.
The copy of the confession signed by appellant became the original, and the unsigned copy was erroneously admitted in evidence. 22 C.J.S., Criminal Law, § 833, page 1456; 3 Wigmore, Evi. (3d Ed.) 351; 5 Wigmore, 664; State v. Comery, 214 La. 245, 36 So.2d 781; Woods v. Postal Telegraph-Cable Co., 205 Ala. 236, 87 So. 681, 27 A.L.R. 834. The stenographer was the only person who could authenticate the notes taken and transcribed by her. Degg v. State, 150 Ala. 3, 43 So. 484.
In the case of Elkins v. State, 250 Ala. 672, 35 So.2d 693, this court held that the best evidence rule does not apply to confessions which are extrajudicial. It was pointed out that all that the accused wrote or said which is material to the charge is competent against him. Applying the principle to the present case the state could show either what the defendant voluntarily said when she was examined or it could show the writing which she voluntarily gave as containing a statement of the facts.
Now if the state undertook to follow the first alternative, the evidence fails to meet legal requirements. Batchelder did not testify as to what the defendant said. At best he identified a writing which might be regarded as a memorandum of what the defendant said and then the writing was introduced in evidence. This was incorrect. Parsons v. State, 251 Ala. 467, 38 So.2d 209, 217; Acklen's Ex'r v. Hickman, 63 Ala. 494, 35 Am.Rep. 54; Birmingham Railway Light Power Co. v. Seaborn, 168 Ala. 658, 53 So. 241; Deal et al. v. Hubert, 209 Ala. 18, 95 So. 349.
This brings us to the second alternative. Could the writing which was introduced be regarded as the written confession of the defendant? We do not think the evidence justified the introduction in evidence of the writing on this basis. Once the theory is adopted that the confession was in writing, then the best evidence rule sets in when it is a question of identifying the particular writing containing the confession. It is true that a written confession requires no signature by the defendant, but once it is shown that the written confession which she made was identified by her signature, then it should be shown why that writing was not introduced before another writing becomes admissible. No such showing was made in this case.
The judgment of the Court of Appeals is affirmed.
Affirmed.
BROWN, FOSTER, LIVINGSTON, LAWSON and SIMPSON, JJ., concur.