Opinion
4 Div. 884.
April 8, 1924.
Appeal from Circuit Court, Covington County; W.L. Longshore, Judge.
Ed Aplin was convicted of manslaughter in the first degree, and appeals. Reversed and remanded.
Marcus J. Fletcher and E.O. Baldwin, both of Andalusia, for appellant.
It was error to admit evidence to the effect that witness wanted to rue his trade of pistols with defendant. Spicer v. State, 188 Ala. 9, 65 So. 972. Testimony of what a witness said to the defendant was inadmissible. McAnally v. State, 74 Ala. 9; Morris v. State, 146 Ala. 66, 41 So. 274.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Counsel argue the questions raised, but without citation of authorities.
The defendant in this case was indicted jointly with one Joel Wright on a charge of murder. Wright was convicted at a former term, of murder, and on the trial of this defendant the jury returned a verdict of manslaughter.
The actual killing was done by Joel Wright and the theory of the state was that Wright and this defendant entered into a conspiracy to kill the deceased. There are so many objections and exceptions to the introduction of testimony, as to render a detailed discussion of each exception impracticable, extending the opinion to undue lengths, without accomplishing any good purpose. A statement of the general rules governing such cases should be a sufficient guide for another trial.
There being evidence tending to prove a conspiracy, each conspirator is answerable for the acts of each and all of his coconspirators, if the act be in furtherance of the conspiracy or the matter a direct and proximate result of such conspiracy. De Bardeleben v. Sellers, 17 Ala. App. 247, 84 So. 403. A wide latitude is allowed in proving conspiracy to commit a crime, extending to everything said, done, or written by either of the conspirators in the execution or furtherance of their common purpose. Morris v. State, 17 Ala. App. 126, 82 So. 574. In line with the foregoing, and there being evidence tending to connect the defendant with a conspiracy to kill the deceased and with aiding and abetting the crime, testimony that on the day before the killing defendant, with Joel Wright, attempted to obtain a pistol from Adam Florence, what defendant said and did at that time, and what Wright said and did, in an effort to get the pistol and the threats made against deceased, were all admissible in evidence as was also the fact that the defendant and Wright had liquor along of which they were drinking. The proof of one crime is not ordinarily admissible to establish another or a different crime, but where the two are connected, tending to prove guilt, the fact that the act proven is in itself a crime will not exclude it from evidence. It having been testified to that defendant and Wright were seen coming up the road from the direction of the house of deceased, with the "horse under speed," and about the time of the killing, it was competent to prove that he heard Mrs. Wright, the mother of deceased, screaming at her home, where the murder took place. This was a part of the res gestæ.
There being evidence of a conspiracy, threats by either defendant or Wright, to kill or injure the deceased, if made after the conspiracy was entered into, are relevant and admissible against either party.
Any effort made by the defendant, after the homicide, in an effort to suppress testimony, is admissible, and a statement tending to an admission of guilt, if voluntarily made is admissible.
The facts testified to by the witness McGhee, to the effect that defendant and Wright had whisky, were drinking whisky, getting cartridges, and making threats against the dead man, all on the day of the killing, were relevant, as tending to show a preparation, both mentally and physically, to murder the man whom they afterwards killed.
We have so often held, as not to be now necessary to cite authority, that a description of the wounds, clothing, size of the bullet, and a full description of the locus in quo of the dead man and place of the difficulty is admissible in evidence, wherever it appears that the conditions are not changed from what they were when the killing took place. This is of the res gestæ.
It was relevant for the state to show that defendant owned a .32 special S W pistol, that the shooting was done with such a pistol, and that a few days after the homicide defendant made an effort to dispose of this pistol, and that he did trade it; any testimony tending to show that defendant was making an effort to suppress evidence is admissible against him.
On the other hand, it is not permissible to permit a witness to state the details of advice given by the witness to defendant, none of which is relevant, except as a part of a conversation, and then only on cross-examination, when the opposite party has brought out on direct examination a part of the conversation. It was relevant for the state to prove that defendant came to his home with Joel Wright, made threats against the dead man, had whisky of which they were drinking, and tried to get a pistol, and that they had a pistol with them, but it was error to permit the witness to testify as a part of his testimony in chief:
"I said, 'Please take a nigger's advice, that is too bad to think-about that, and then Mr. Joel, think about your wife and little babies and how nice they are and then about your old Mama and that is your brother,' and I said to Mr. Aplin, 'You think about your Mama and Papa and how nice they are.' "
The foregoing statement tends to prove no fact, to explain no act of defendant.
The testimony of state's witness Earn Hogg that Herbert Broadie had told him to tell John Wright, deceased, to stay away from the store on the day of the homicide, was irrelevant and inadmissible. The homicide was not at the store or near it. The evidence was hearsay.
In the examination of the state's witness Mack Curry, the state was allowed much latitude. To prove by this witness that defendant swapped pistols with him shortly after the killing if the approach to swap was made by defendant was admissible as tending to prove an effort to suppress testimony. But that this witness afterwards went to defendant to rue back because he (witness) had heard about the difficulty and that there was trouble about it, and he (witness) had heard Johnnie Wright had been killed with Aplin's pistol and the details of the conversation with reference to the "ruing back" was inadmissible, irrelevant, and hearsay. The rule is clearly stated in Spicer's Case, 188 Ala. 9-19, 65 So. 972, 975:
"Presumptions or inferences may be, and often are, founded on circumstances which, of themselves, independent of the accusation, would not be ground of crimination. It is largely a question of fact, rather than a question of law, for the determination of the jury, whether particular conduct, or particular expressions of the accused, refer to a criminal offense, and spring from his consciousness of guilt."
But, where it is clear that they have no relation to the offense charged, they should be excluded. The above rule applies to acts and statements of defendant. The acts and declaration of third persons to and towards defendant are clearly irrelevant.
The questions asked defendant's witness Clark by the state's counsel were within the legitimate bounds of cross-examination.
Other questions raised will probably not arise on another trial.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.