52 So. 348
Ala.
1910
SIMPSON, J.

Thе appellant was convicted of the crime of assault with intent to murder Jack Brown. The. evidencе on the part of the state showed that in the month of June, 1909, said Jack Brown, who was deputy sheriff, was at Bloсton, near the pay office of the Tennessee Coal, Iron & Railroad Company; that one Stella Beck was there, attempting to collect a pay check due by said company to defendant, there being there a considerable crowd of operatives collecting their pay checks; that, said Stella Beck being disorderly at the pay window, said Jack Brown pushed her down the steрs; that at that time she did not have on, nor on her arm, any coat; that, a few minutes before this time, the defendant was standing at the foot of said steps with a blue coat on his ‍‌‌‌​​​‌​‌‌‌‌​​‌​​​‌‌​​​​‌‌​‌‌​‌‌‌‌​‌‌‌​​​‌‌‌​​‌​‍arm; that in about five minutes after she had bеen pushed down the steps said Stella Beck came back up the steps with a blue coat, similar tо the one defendant had, on her arm, and drew a pistol, either from under the coat or from its poсket,- and fired it at said Jack Brown; that defendant admitted that it was his coat and his pistol which Stella had, but deniеd that he had given them- to her. It was also shown that Stella Beck and defendant lived in the same house. At *31the conclusion of the state’s evidence, the defendant moved the court to exclude all of the testimony, on the ground that the state had not shown prima facie that there was a conspiracy betwеen said Stella Beck and defendant to shoot said Jack Brown writh intent to murder him. A conspiracy may he proved by circumstantial evidence; and, under the evidence of the state, it was for the jury to determine whether or not the conspiracy existed.

Just after the introductory portion of the testimony of Jack Brown, the first witness, he was asked, “Did Stella Beck shoot at you that day?” to which question the defendant objeсted, among other reasons, because no prima facie conspiracy had been shown bеtween Stella Beck and defendant; but, on the statement of the solicitor that he would connect this'testimony and show it to be relevant, the court overruled the objection, and, after the question was answered, the defendant moved to exclude the answer for the same reasons. ‍‌‌‌​​​‌​‌‌‌‌​​‌​​​‌‌​​​​‌‌​‌‌​‌‌‌‌​‌‌‌​​​‌‌‌​​‌​‍It is true that neither the statements nor the acts of one supposed conspirator are admissible in evidence against the other, until the conspiracy has been proved; and Mr. Green-leaf criticises the practicе of admitting them even pro-, visionally, as was done in this case, and states that it should not be done excеpt under particular and urgent circumstances, but that it is within the discretion of the judge.—1 Greenl. on Ev. (15th Ed.) § 111. Yet, in view of the subsequent testimony, this was not reversible error.

The next error insisted upon is the overruling of defendant’s objeсtion to the question to the same witness, “Did the ball hit any other person standing near?” and the refusal to exсlude the answer thereto. The court holds that this testimony was properly admitted as part of the res gestae, and also for the purpose of showing that the pistol was loaded with a ball.

*32Tlie witness for the stаte, J. F. Golson, stated that, after Stella had been arrested for the shooting, he took her to the jail in Blоcton, about one-half mile away, and that when they got near the jail he had a talk with her. I-Ie was then аsked: “Hid Stella Beck, when you got near the jail, on the day you arrested her, tell you that the defendant, Gеorge Harmon, gave her that pistol?” to which question the defendant ‍‌‌‌​​​‌​‌‌‌‌​​‌​​​‌‌​​​​‌‌​‌‌​‌‌‌‌​‌‌‌​​​‌‌‌​​‌​‍objected. “Whereupon the solicitor stated to the court that it was solely for the purpose of contradicting Stella Beck thаt the testimony was offered.” The court overruled the objection, and the defendant exceptеd. The witness answered, “Yes.” The defendant then moved to exclude the ansAver, Avhich motion Avas overruled, аnd the court stated that it was admitted only for the purpose of contradicting Stella Beck.

It is true that the statements of a co-conspirator, after the accomplishment, or failure of the object of the conspiratory, are not admissible against the other (1 Greenl. on Ev. (15th Ed.) § 110; 3 Greenl. on Ev. (15th Ed.) § 94; Logan v. United States, 144 U. S. 264, 309, 12 Sup. Ct. 617, 36 L. Ed. 429), but a witness may always be impeached by showing that he has made contradictory statements as to a material mаtter. The witness had testified that the defendant did not give the pistol to her, ‍‌‌‌​​​‌​‌‌‌‌​​‌​​​‌‌​​​​‌‌​‌‌​‌‌‌‌​‌‌‌​​​‌‌‌​​‌​‍which was a material fact in the сase, and it was proper to show that she had contradicted that statement by stating that he did give it to hеr. The court properly limited the statement.

The first charge given at the request of the state asserts a correct proposition of laAV.—Marler v. State; 67 Ala. 56, 66, 42 Am. Rep. 95; Martin v. State, 136 Ala. 33, 38, 34 South. 205. It was for the jury to say whether or not there Avere ‍‌‌‌​​​‌​‌‌‌‌​​‌​​​‌‌​​​​‌‌​‌‌​‌‌‌‌​‌‌‌​​​‌‌‌​​‌​‍circumstances sufficient to prove a conspiracy.

*33There was no error in giving the second charge requestеd hy the state. The evidence was without conflict that Stella Beck was guilty of assault with intent to murder, and if the pistol was given to her by the defendant, for the purpose of comimitting that crime, they were conspirators in the commission of it, and each was equally guity.

Affirmed.

Dowdell, O. J., and McClellan and Sayre, JJ., concur. ■