111 So. 49 | Ala. Ct. App. | 1927
The guilt, and therefore the conviction of this appellant, rested solely upon an inference the result of an inculpatory statement alleged to have been made in his presence by his own son, Jim Marlow. The testimony without dispute, showed that Jim Marlow was an imbecile, or at least was very weak-minded, and to that extent necessarily irresponsible. The evidence also showed that the defendant, father of Jim Marlow, was deaf, or "hard of hearing," as all the testimony disclosed. Therefore it is not conclusive, or at all certain, that the defendant heard the incriminatory accusation. This being true, we are of the opinion that the court should have, in all fairness to the defendant, granted defendant's motion for a new trial, as the evidence of the state did not measure up to the required rule in order to fasten guilt upon him.
The rule as to inculpatory statements made in the presence of defendant is stated in the case of Smith v. State,
"The well-settled rule in relation to evidence of this character is that the statement must be of a character which naturally calls for a reply, and the party to be affected by it must be in a situation in which he would probably respond."
In Rowlan v. State,
"Silence in the face of pertinent accusation of crime by the party accused partakes of the nature of a confession, and is admissible as a circumstance to be considered by the jury as tending to show guilt; but, to be admissible, it must be shownthat the accused heard and understood the charge against him under circumstances calling on him for a denial, and that he was silent."
Over the objection, motion to exclude, and exception of defendant, the court permitted the state to prove by its witness P. H. McQueen in reply to the question by the solicitor, "What did Jim say?" witness replied: "He acknowledged that the still belonged to his father." This answer was but a mere conclusion of the witness as to "what Jim said." He should have recited the conversation as best he could and should not have been allowed to draw deductions or his conclusion as to the meaning or purport of the statement. This ruling was error. Refused charges 3 and 5 should have been given. Other questions are presented, but need not be discussed.
Reversed and remanded.
