The application for certiorari having been granted in this case, and the decision of this court being reversed and the cause remanded for further consideration, this court, of course, will only consider the questions not heretofore decided by the court. It was suggested by this court in its former opinion that it was error to introduce in evidence the testimony of two witnesses, James Mason and Bob Strickland, given on the preliminary trial of this case. We declined to decide this question, for the reason that it might not arise on another trial; the case being reversed on other grounds. But it now becomes necessary to decide this question before the cause can be finally affirmed or reversed. It is our opinion that it was reversible error for the trial court to allow this testimony introduced in evidence by the state. So far as the record shows, it was introduced as independent proof, notwithstanding both of the witnesses were then present in court and had testified. The law is well settled that testimony of witnesses on a former trial is never admissible except in case of necessity, where the witness is dead, incapacitated to testify, or his presence cannot be obtained. Kirkland v. State, 141 Ala. 45, 37 So. 352; Pate v. State,158 Ala. 1, 48 So. 388.
It is equally well settled that such testimony is not admissible to corroborate witnesses who testified on the trial. It is never permissible to corroborate witness by proving that he made similar statements prior to the time of his testifying, or that he testified in the same manner on a previous trial. See Long v. Whit, 197 Ala. 271, 72 So. 529; Jones v. State,107 Ala. 96, 18 So. 237; McKelton v. State, 86 Ala. 594,6 So. 301; Nichols v. Stewart, 20 Ala. 358. These cases either overruled or distinguished the cases holding to the contrary, and this case does not fall within the exception or the cases so distinguished. If the defendant had offered any part of the testimony of these witnesses on the former trial in evidence, or if he had offered independent proof as to what they testified on the former trial, then the state could have introduced this testimony, not as independent proof of the testimony of these two witnesses, nor in corroboration of what they testified on this trial, but it could have introduced the testimony for the purpose of having the jury to ascertain whether or not the witnesses had testified differently on the two trials; but the testimony would have had to be limited for this purpose and could not have been introduced generally, as it was. As we have shown above, no one of the conditions authorizing it to be introduced in evidence at all existed.
It therefore results that the judgment must be reversed, and the cause remanded.
Reversed and remanded.
SAMFORD, J., dissents. *Page 656