106 So. 617 | Ala. | 1925
Lead Opinion
This court does not commit itself to the holding of the Court of Appeals to the effect that error intervened in the admission of the evidence that a pair of pants and a hat were found in the Buick car, referred to as the "death car," after its return from its death mission, nor in the admission of evidence that clothing and other equipment of Company M were missing when checked up after the homicide.
We do not approve the holding of the Court of Appeals that, even if Capt. Lollar was shown to be one of the coconspirators, his subsequent instructions to the company, looking to a suppression of the facts, the defendant being present, would not be admissible. As correctly held by the Court of Appeals in dealing with other rulings, efforts to conceal evidences of the crime on the part of its perpetrators was admissible. It may be said that, in the nature of the case, the commission of murder by a masked mob implies a continued conspiracy of concealment and suppression.
But we do approve the holding of the Court of Appeals that, in the absence of any evidence tending to connect Capt. Lollar with the mob, his instructions or advice to the members of the company were not admissible against defendant. Not being a member of the conspiracy, he was not a spokesman for its members by reason of the criminal relation existing between them, and his declarations could only become admissible under that other rule which admits declarations of third persons under conditions pointing so directly to accused that he is called upon to disclaim the express or implied imputation of crime — when his silence may be reasonably deemed an admission of guilt. On certiorari this court looks alone to the findings of the Court of Appeals as to the tendencies of the evidence. Upon the finding by that court that there was no sufficient evidence to connect Capt. Lollar with the conspiracy, the admission of his declarations was error, and worked probable injury to defendant.
Writ denied. *4
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
Addendum
The application for rehearing on behalf of the state has been carefully considered by the full court.
We adhere to and apply the rule often stated that we neither review the findings of fact by the Court of Appeals, nor the application of the law to the facts, unless the tendencies of the evidence shown in the decision of the Court of Appeals disclose a misapplication of the law. Hence, we do not go to the record of proceedings of the trial court to find if there was other evidence which would affect the correctness of the decision we are reviewing by certiorari.
In the brief of the state's counsel presented to us on rehearing, it is earnestly insisted there was evidence tending to show the defendant's active acquiescence and co-operation in the effort to suppress testimony by Capt. Lollar. Thus it is stated in brief that the witness Hartley further testified that at the same time of Capt. Lollar's instructions to Company M, copied in the opinion of the Court of Appeals, and in contemplation of the interview with the state's attorney, this defendant said: "If any of you jig heads go and squeal on us, we're going to whip hell out of you."
If this is shown by the record, we hold it was sufficient to warrant the admission of the statements of Capt. Lollar; there was no error in their admission; and the cause should have been affirmed. On like predicate they will be admissible on another trial, in the event it is ordered. It would appear, if state's counsel are correct in quoting testimony from the record, the Court of Appeals overlooked this tendency of the evidence in finding there was no evidence of acquiescence by defendant in the declarations of Capt. Lollar; but, as stated, this is a question wholly for that court.
Application overruled.
All the Justices concur.