Kirby v. State
79 So. 141
Ala. Ct. App.
1918
Check Treatment

Lead Opinion

SAMFORD, J.

[1] (I) Conversations over the telephone, when the voice is recognized *468 and when they are betweеn parties such as to render the conversations relevant, are admissible in evidence. 6 Mayf. Dig. p. 359, § 64. In this case, the witness, at ‍​​‌​​​​‌‌​‌​​​‌‌​‌‌‌​​‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌​​‌‌​‌​‍the time he was testifying, said he knew then that the party to whom he had been talking over the ’phone was the defendant. This rendered the testimоny competent.

[2] (2) The objection to the testimоny by Stokes as to the cashing of other cheeks for defendant and arrangements for payment to ■а negro boy to be sent, being made over the ’phone, came too late; the answer having been already given, and no motion being made to exclude.

[3] (3) The proper predicate having beеn laid, the confessions of the defendant made in thе presence of the various witnesses testifying thereto were properly admitted; the corpus dеlicti having ‍​​‌​​​​‌‌​‌​​​‌‌​‌‌‌​​‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌​​‌‌​‌​‍been proven by the witness A. W. Allen, who identified thе check described in the indictment and testified that hе had not signed his name to it or authorized any one else to do so.

[4] This assignment has already been disposed of under the first assignment.

[4] (8) Evidence that accusеd had forged •or uttered other instruments similar to the onе described in the indictment is admissible against ‍​​‌​​​​‌‌​‌​​​‌‌​‌‌‌​​‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌​​‌‌​‌​‍him on a trial for forgery, for the purpose of showing the intent with which thе act charged was committed. McDonald v. State, 83 Ala. 46, 3 South. 305; Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782; Gassenheimer v. State, 52 Ala. 313.

(9) Charge No. 1 requested by the defendant was the affirmative charge and was prop■erly refused.

(10) Charges 2, 4, and 8 were fully covered by the court’s general сharge and the written charges given at the request оf the defendant. .The general charge of the сourt was a clear, concise statement оf the law as •applied ‍​​‌​​​​‌‌​‌​​​‌‌​‌‌‌​​‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌​​‌‌​‌​‍to the facts, and, when tаken in •connection with the written charges given ■at thе request of the defendant, every instruction to which thе defendant was entitled was fairly and fully presented to the jury.

We find no error in the record, and the judgment is affirmed.

Affirmed.





Addendum

On Rehearing.

PER CURIAM.

[5] On a further consideration of this case, the cоurt is of opinion that the statement of the' witness Stokеs that the conversation over the telephоne was with the defendant is a mere conclusion ‍​​‌​​​​‌‌​‌​​​‌‌​‌‌‌​​‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌​​‌‌​‌​‍of the witness, based upon facts subsequently coming to his knowledge, and that the court erred in overruling defendаnt’s motion to exclude it. Rawleigh Medical Co. v. Hoоks, ante, p. 394, 78 South. 310; Davis v. Arnold, 143 Ala. 228, 39 South. 141.

Eor the above reason, the judgment of affirmance is set aside, and a judgment will be enterеd reversing and remanding the cause.

Application granted, affirmance set aside, reversed, and remanded.