Langford v. State

130 Ala. 74 | Ala. | 1900

SHARPE, J.

Defendant was separately tried upon an indictment charging hint and one Sill Justice jointly with a rape on Justice’s wife. The wife testified that defendant committed the offense and that her husband being present forced her to submit. Against defendant’s objection she was allowed to testify that about two or three weeks before that occurrence, Justice, the husband, told her “he had tried to get a divorce but did not have sufficient evidence.” In this there was error. ' In the absence of evidence that defendant was present when this was said, we fail to recognize any principle rendering this testimony admissible. Conceding that a necessity for making evidence in order to procure a divorce might have furnished a motive for the husband’s alleged unnatural co-operation in the crime, yet so far as appears it Avas as to the defendant res alios acta and not binding for any purpose. If the theory upon Avliich it Avas admitted be that there was a conspiracy betAveen Justice and defendant, to force the witness to sexual intercourse and thereby make evidence in aid of divorce proceedings, evidence of a conspiracy pending at the time of the utterance by Justice, must have been adduced, in order to Amlidate his declaration as evidence against the defendant. It is the singleness attaching to conspirators as a body and growing out of a combination in the prosecution of a common design, that founds the principles under which the declarations of one Avith reference to that design may be attributed to all. The reason fails and the principle is inapplicable where the declarations precede the combination. — 3 Green. Ev. (16th ed.), § 94; 2 Whart. Grim. Luav, § 406; 6 Am. & Eng. Ency. Law, 867. Evidence that defendant, who is not shown to have had any incentive to promote a divorce, was co-operated with by Justice in perpetrating rape, in itself and without more, could not reasonably have afforded an inference that they had íavo or three Aveefcs previously entered into a conspiracy to commit the crime.

Mrs. Shields testified that eight days after the alleged offense Sill Justice and two Langfords, brothers of defendant, were at her house talking with her daughter, Mrs. Justice, and “tried to get her to go back and live with Sill;” that her daughter refused to go and told her husband in the presence of the two Langfords, she would live with him at any other place than the Lang-ford place. She ivas then against defendant’s objection allowed to testify that ón that occasion her daughter told her in the presence of her husband and the Lang-fords, the defendant not being present, that her husband “brought the two Langfords there for witnesses for a divorce.” This was a statement of a fact, or opinion, giving color to the theory that the husband was planning to establish grounds for a divorce and tending to increase the probability that there bad been a conspiracy with defendant. It was as to the defendant mere hearsay, improper to be used as evidence against him, and was calculated to prejudice his case in the manner stated.

We discover no other error prejudicial to defendant either in the rulings or action of the trial court. The unnumbered refused charge on the subject of reasonable doubt appears to be correct, but in substance, it is embodied in other charges given at defendant’s request. The other refused charges were each faulty for reasons which need not be pointed out since the judgment must be reversed for the errors mentioned.

Reversed and remanded.