Hudson v. State, 137 Ala. 60

HABALSON, J.

1. The defendants, Hudson, Williams and Jones, were jointly indicted with two others, Bryant and Lee, for robbery. On their arraignment in court, on the 9 th of January, 1903, the two latter moved the court to grant them a severance of trial from the other defendants, which motion the court granted and ordered them to be tried separately from the others. The other defendants, Hudson, Williams and Jones, did not move, for a severance, but upon being duly arraigned, each pleaded not guilty to the indictment, and the 21st of January, 1903, ivas set for their joint- trial. On that day, the State having announced ready, these defendants demanded a severance. The bill of exceptions recites: “The court having ascertained that all of. said defendants were duly arraigned in open court, on January 9th, 1903, though they had not employed nor were represented by counsel at the time, and each of said defendants pleaded not guilty, and made no demand for a severance at that time, nor at any subsequent time to the present time, the ■court infused to grant the severance of said (defendants) * * * and t,o this action of the court, the defendants excepted.” In this ruling there was no error. -Any further severance after the first, was a matter of discretion with the court. — Buie. 32, p. 1200 of Code; Given v. State, 109 Ala. 39; Malachi v. State, 89 Ala. 134.

2. The defendant, Abe Williams, after he had exhausted his five peremptory challenges, offered to challenge another, claiming that he was entitled to more than five challenges. When two or more defendants are tried together, each is entitled, under the statute1 for Jefferson county, to five peremptory challenges and no more.— Acts, 1890-91, p. 561; Malachi v. State, supra.

3. John B. Messer, the party alleged to have been robbed, examined as a witness by the State, testified that on Friday night, January 2d, 1903, he was robbed of certain personal property such as is, described in the indictment, This statement was made in answer to a question by the solicitor, asking him “Whether or not he had ever been robbed?” No objection was made to the question when asked, but after the witness had answered it, the defendant objected on the ground that the answer was a conclusion of the witness, and moved to exclude it, which the court, declined to do. ' The objection, if good at all, came too late. It should have been, made when the question was asked. — Downey v. State, 115 Ala. 108.

4. This witness had testified on his direct examination to the exact amount of money of which he had been robbed, — of money taken from his person and from his cash drawer in his presence. On toe cross by defendant, he stated that he could not state the exact amount of money taken from the cash drawer, but gathered it in a general way from the sales book. The defendant objected on the ground that the books were toe best evidence of the amount taken. The objection on this ground wras not available.

5. The witness on his cross, was asked by defendant, what report he made to' the police office, and what description he gave o-f the man who asked for the handkerchief, which he proposed to buy from the' witness, when he came into his store. He answered that he reported the robbery, and described the man who first came into the store, as one having a silk faced coat. On rebuttal, the solicitor asked the witness, to state all the conversation had at the police office, called for by defendant, and what other description he gave than that asked for by defendant, and for all the conversation asked for by defendant. The. defendant interposed a general objection to this evidence, which was overruled, and the witness was allowed to answer. The defendant having called for a part of the conversation had by the witness with the police officers, toe court committed no error in allowing the State to call for all that was said by the witness at the time. — Davis v. State, 92 Ala. 20.

6. As Alice Ware, a witness for defendants, was getting in the witness chair, defendant’s counsel for Hudson and Jones stated that he had not had an. opportunity to talk to' the witness, and asked to be allowed to speak to her privately before examining her, but the court dedined to allow him to do so. This was a matter within the discretion of the court, and there -does not appear to have been any abuse of its discretion.

7. Abe Williams, one1 of the defendants, testifying in his own behalf, stated that he, Will Jones and Will Hudson all participated in the robbery, and that the statement of Mr. Messer, as to how the robbery occurred was correct; that these two defendants came to his house on Friday night, about 6:30 o’clock, and asked him to come to their house that, night, and they would go hunting; that he went there; and they had pistols and guns; that they went towards Avondale and stopped, and Will Hudson said he was going to have some money, and handed witness a gun and fifty cents, and told him to go to Messer’s store and get a handkerchief and find out where the cash drawer was; that witness said, “No, he would not,” but they said, they would! kill him, and Hudson said to Jones, “Do him like we did the officer,” and that through fear, he went in and did as Mr. Messer had testified; that witness had the big pistol, Hudson -the smaller one, and Jones the. gun, — such as the evidence showed they had. The other defendants, Hudson and Jones, interposed no objection to this testimony of Williams as it was called out.

At this point, both sides announced -that the evidence had closed, and the court, adjourned until the, following morning, and all the witnesses were discharged- from further attendance upon the court,, with the privilege of allowing the defendants to introduce testimony next morning on one point, — as to the length of time it would take a freight train to go from Mobile to Birmingham. On the following morning, the court, allowed evidence on this point. Following this, the defendants, Hudson and Jones, objected to all the: testimony of Williams, given the evening before, on grounds, “that the declarations of a co-conspirator to charge his fellows must be concomitant with the principal act and so connected with it as to constitute a part of the res gestaeand that, “a co-conspirator cannot be convicted upon the testimony of an. accomplice unless such evidence is corroborated bv the evidence tending to connect him with the principal offense; and that the corroboration is not sufficient, if it merely shows that the offense was committed and the circumstances thereof,” which objections were overruled. They also objected to the testimony of said witness, — “that Hudson said to Jones, ‘Do him like we did the officer’,” on the ground that it sought to connect them with an offense for which they were not on trial, which objection was also overruled; the said defendants reserving an exception to each of these rulings.

There had been introduced direct and circumstantial evidence prima facie sufficient to establish the existence of a conspiracy between the defendants to commit the crime, in which case the evidence of the witness, Williams, as for this objection, was properly allowed. — Hunter v. State, 112 Ala. 77; Malachi v. State, 89 Ala. 134. What the witness testified to, were not his declarations to a third person, sought to be. introduced as to the commission of the offense, but was his testimony to that effect, delivered on the stand of his own motion, and without objection on the part of his co-defendants.

From what has been said, it will appear that the two charges requested by defendant were properly refused.

Affirmed.

Case Details

Case Name: Hudson v. State

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1902

Citation: 137 Ala. 60

Court Abbreviation: Ala.