74 Ala. 9 | Ala. | 1883
— In charges of crime which, in their nature, may.be perpetrated by more than one guilty participant, if there be a previously formed purpose or conspiracy to commit the offense, then the acts, declarations and conduct of each conspirator, done or expressed in promotion of, or in relation, to the object or purpose of such conspiracy, become the- act, declaration, or conduct of -each co-conspirator, and. may be-given in evidence against him. But, to allow such testimony to go to the jury, a foundation must be laid by proof sufficient, in the opinion of the judge presiding, to establish, prima facie, the existence of such conspiracy. — 1 Greenl. Ev. § 111; Wliar. Cr. Ev. § 698; Stephens’ Dig. Ev. 46; Browning v. State, 30 Miss. 656. But, when such testimony is received under this rule, it does not necessarily establish the conspiracy an.d common guilt of those not actively participating in the criminal act. The question, whether sufficient to establish the common guilt, is one for ultimate decision by the jury.
The present record states that it contains all the evidence, and it fails to show a prima facie case of conspiracy between any two of the parties indicted, to take the life of deceased, or do him other injury. The most it tended to show was, that' two or more of them had malice against him, probably for alleged differing reasons. The Circuit Court erred in admitting evidence of acts or declarations, or prosecutions, of parties not on trial. This ruling does not exclude evidence of malice,-or motive on the part of appellant, to commit the alleged crime, if there be such evidence.
It is not -necessary we should consider the irregularity of
An attempt was made to prove an alibi, in the trial of this cause. The charge No. Y, asked by the solicitor, and given by the court, can not be maintained. It asserts, that it is essential to the sufficiency of such defense, that it cover and account for so much of the time of the transaction in question as to render it impossible the prisoner could have committed the imputed act. This lays down too exacting a rule. The testimony in this cause shows, that the deceased came to his death by a gun-shot wound, fired at short range. Whoever did the fatal deed, was in close proximity to the deceased] Without it, he could not, and did not fire the shot. In the absence of conspiracy shown between the defendant and another, to take Hanna’s life, followed by the homicide at the hands of that .other, then the defendant can not be guilty, unless, at the time, he was near enough to do the deed. Proximity — opportunity— is a necessary, indispensable condition of his guilt. It is not necessary that the prosecution should, in the first instance, prove such proximity, if the testimony is otherwise sufficient. But, opportunity being an indispensable factor in the proof of defendant’s guilt, if, on the whole testimony, this be left in reasonable doubt, then defendant’s guilt is not established beyond a reasonable doubt. — Whar. Cr. Ev. § 333; French v. The State, 12 Ind. 670; Kaufman v. The State, 49 Ind. 248; Howard v. The State, 50 Ind. 190; Line v. State, 51 Ind. 172; Miller v. People, 39 Ill. 457; Otmer v. People, 76 Ill. 149; Stuart v. People, 42 Mich. 255; Com. v. Choate, 105 Mass. 451; State v. Waterman, 1 Nev. 543; Pollard v. State, 53 Miss. 410; Chappel v. State, 7 Cold. (Tenn.) 92.
In the state of the proof shown in this record, after excluding, as we, have done, the acts and declarations of others noton trial, the facts do not present a case in which charge No. 6, asked for the prosecution, should have been given. — Childs v. The State, 58 Ala. 349. Charge 3 is, perhaps, subject to criticism, in view of the testimony found in this record.
The proof in reference to a previous difficulty was only admissible as tending to show malice, or a motive for doing the deed. In such ease, it is the fact of such difficulty, and its gravity, or the contrary, which may be proven. Its merits, oribe particulars, can not be given in evidence. If they were, the tendency would be to divert the minds of the jurors from the issue they are impanelled to try, to the merits of the former quarrel. Too much latitude was allowed in this ease. Nothing should have been received, which tends to show who was in fault in the former difficulty. — Gray v. State, 63 Ala. 66; Clark’s Cr. Dig. § 375.