McCLELLAN, C. J.
“When two or more defendants are jointly indicted, they may be tried either jointly or separately as either may elect.” — Code, § 5275. “Where two or more persons, charged with a capital offense, are jointly indicted, either of them is entitled to demand a severance, but such right shall be* considered as waived unless claimed at or before the time of arraignment, or, at latest, when the court, at any term, sets a day for the trial of the case, and makes ■an order to summon a special venire. In other than capital offenses, a severance may be demanded at any time before the case regularly goes to the jury.” — Rule 32, Code, pp. 1200-1. This rule is in no sense violative of the statute. It does not defeat nor encroach upon the right given by the statute, but is merely supplementary and complementary thereto in providing when that right must be claimed, the provision being necessary to the prompt and orderly course of justice and leaving all defendants in all (tases abundant opportunity to avail themselves of the right the statute gives them. The indictment in the 'case at bar charges a capital offense, and falls under the first clause of the rule. By not availing themselves of the 'opportunity they had to demand a severance at or before the time of the order made setting a day for the trial and for a special venire, they waived their right; and the court committed no error in overruling and denying the motion for severance *10made by ■defendant Miller on the day set for the trial of the ease.
I)r. Whelan’s testimony as 'to the course of the bullet which killed Kirkley -was. relevant and material, though this indictment is for the murder of Adams. It went to support the theory of the State, and to corroborate other evidence adduced by the prosecution that each of the defendants participated in the killing of the officers with a common intent to rid themselves of their captors'.
There was a question of the identity of the defendants with the men with whom the officers had iii charge, and who, after apparently submitting to arrest, suddenly set upon Adams and Kirkley and killed them. As to Duncan this issue continued throughout the trial, his defense being an alibi. Miller took the stand, being the last witness examined for the defense, and admitted his identity, but denied participation in the killing. Bul doubtless he was driven to this admission *ln- the. strong evidence introduced by the State going to show that he 'was one of the men arrested by the officers and participating in the homicides. 'So that it is not inapt, to say that the issue, of identity as to each of the defendants was a material and prominent issue throughout the introduction of testimony in chief by the prosecution. Both the defendants were strangers •in Birmingham, the scene of the murders. They came there a day or two before the homicides. They left as soon as possible. Miller 'was captured in Anniston in the course of his flight. Duncan was captured in Chattanooga. Duncan denied throughout that he was in Birmingham at all. Miller was in the attitude of the same, denial until he went on the stand, so far as the record shows. The testimony of the eye witnesses of the shooting tended to identify the defendants as the guilty parties, but the shooting was at night and the identification was not-positive or certain. Miller was brought before Adams, and it was in evidence as a part of his dying declarations that Miller was the man who shot him, 'but there was evidence tending to impeach the accuracy of his declaration in this regard; and besides this declaration had no reference to the other de-*11fondant. Hence it may be said to have been in a sense necessary for tlie State, to offer additional evidence of identification. But whether necessary or not, it was of course competent for the State to do so. To this end, it is plain that the testimony of Smith tending to show that on the afternoon before the night of the killing these defendants were in Birmingham, that he then saw and talked with them on the outskirts of the city, and, in connection with other testimony to be presently adverted to, that this was in the neighborhood of the Standard Oil Coanpany’s office and that one of them asked him whether the. police came out that far, was properly received in evidence. And Marida Wilson’s testimony was properly admitted in corroboration of Smith’s. So, too, the testimony of Frank Brown that on the morning of the day before the shooting he rented a room for a week to a party of six or seven men, that the defendants were of or with this party, that they paid for the room for the time mentioned in advance, but disappeared from it that 'afternoon or early evening and never came hack. So, too, the evidence of the witness Clayton, watchman at the Standard • Oil Company’s place ,that he saw the defendants at the Standard Oil Company's office on the outside of the fence on the Sunday or Monday afternoon before the murder, that a party of seven or eight men came there between nine and ten o’clock that night and that two of said party were about the ’size and general appearance of the defendants. Tlie further testimony that these men took a pistol from the witness was 'competent in connection with other testimony that this pistol was found in the room where Duncan was arrested at Chattanooga and was then claimed by Duncan as bis pistol, that it was a 38‘ calibre pistol but carried a hall different from the 38 calibre hall of a Smith & Wesson pistol, that on the night of the killing Miller had a 38 calibre Smith & Wesson, that one of the officers was shot with a bullet of that calibre such as is used in Smith & Wesson pistols, and that the other was shot with a bullet of that calibre differing from the Smith & Wesson bullet in being heavier, like the bullets used in the pistol taken from Clayton and recovered from Duncan. Similarly *12it was competent for Clayton to testify that one of the men at tlie Standard' Oil Company’s place 'wore .a light overcoat like the coat -which other evidence showed ivas worn by one of the persons who did the shooting, and which he took olf and laid down on the street in his flight. And, there being evidence that in the pockets of this coat was found a bottle which contained a fluid resembling nitro-glycerine in appearance, that the bottle was not full and that the fluid found in the bottle was a very powerful explosive, testimony tending to show that the Standard Oil Company’s safe was blown open with a fluid explosive by the party of men of which there was yet other evidence that defendants were member®, was properly admitted on the question of identity. And upon the same considerations', the further testimony of Wofford that a pocket book containing certain papers which was -also found in a pocket of that overcoat had been left by him in the Standard Oil Company’® safe and had been taken therefrom on that night by said party of men, was properly received. And so of any other testimony as to what occurred that night at the Standard Oil 'Company’s office tending to identify these defendants as having been at that place on the night of and two or three hours 'before the shooting.
■There was, however, some testimony' received as to occurrences at the Standard Oil Company’s place, which have no tendency to show that the defendants, or either of them, were there on the occasion in question, and which, therefore, throw.no light upon their identity with the men who killed Adams and Kirldey. For in-stancies: The State’s counsel referring to what occurred at that place on the occasion when Clayton’s pistol was taken, the safe was blown open and Wof-ford’s pocket book was removed therefrom 'and carried away, asked Ciayton this question: “Well, was anything done to you the night of the 27th of March?” And he replied: “Well, I was knocked in the head and shot in the foot.” And this question and answer: “Now, Mr. Clayton, just tell all about it, 'all that happened that night?” “Well, I have told all that happened that night. I was assaulted and knocked in the head *13and my pistol taken away and the keys, and I was put in a room — the 'closet — locked up.” And this question to same witness: “If anything' was said about killing you, tell the jury what it was.” To which he replied: “I can’t «ay what was said. I noticed one of the men waived his hand and said something and stopped them from shooting me.” The witness Wofford was asked: “Was there any money missing from the safe?” Reply: “Yes, sir.” He was asked: “How much money was taken from the safe, Mr. "Wofford?” And to this he replied: “Three hundred and thirty odd dollars.” Clayton also testified, as we Lave seen, that having “knocked him in the head and shot him in the foot they took his pistol away from him.” This testimony of Clayton and "Wofford went to prove four separate felonies against the defendants as constituting in part the gang who were at the standard Oil Company’s place that night; an assault on, with intent to murder Clayton, the robbery of the pistol from Clayton, burglary in breaking into, and grand larceny in taking the money from the safe. The taking of the pistol was, as we have seen, competent on the question of identity. But the admission of the testimony of Clayton and Wofford as to the assault upon Clayton, the burglary and the larceny of the money must find justification upon another ground, if it was admissible, since it has no bearing upon identity. We think there is-such other ground upon which its competency may be rested. It had a tendency to show a conspiracy between the defendants to kill both Adams and Kirkley, such pre-conceit of action on their parts to the deaths of both the officers as makes each of the prisonojns. responsible for the death of each of the officers though only Miller shot Adams and Duncan shot Kirkley. It has this legitimate operation in the case through its tendency to show a motive- common to both Miller and Duncan to escape from an arrest- which for each, of them -meant prosecution, and probable conviction of these high felonies. Indeed, we understand it to be a recognized exception to the rule against proof of other -offenses on the trial of that charged in the indictment, to admit such proof when it goes to -show motive for the act under investiga*14tion, and this aside from any question of conspiracy. Hames v. State, 88 Ala. 37" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/hawes-v-state-6513636?utm_source=webapp" opinion_id="6513636">88 Ala. 37, 67; Gassenheimer v. State, 52 Ala. 313" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/gassenheimer-v-state-6509015?utm_source=webapp" opinion_id="6509015">52 Ala. 313, 318; Rex v. Clews, 4 Car. & Payne, 221; Goerson v. Com., 99 Pa. 388" court="Pa." date_filed="1882-03-20" href="https://app.midpage.ai/document/goersen-v-commonwealth-6237043?utm_source=webapp" opinion_id="6237043">99 Pa. 388; Ingram v. State, 39 Ala. 247" court="Ala." date_filed="1864-01-15" href="https://app.midpage.ai/document/ingram-v-state-6507145?utm_source=webapp" opinion_id="6507145">39 Ala. 247, and we do not understand that the prosecution is cut off -from such proof in any case by the circumstance that the ulterior purpose for which the criminal act is done Is apparent on the case as presented without it; and certainly error could not be committed in receiving competent evidence of motive though it be cumulative merely and unnecessary. But such evidence was not cumulative merely and' unnecessary in this case even if it be considered as bearing upon -one of the defendants only and involving no question of concert between them. Let it be applied to Miller for example. He testified that he did not shoot Adams or Kirldey, but merely ran away when the opportunity offered. The testimony for the State was that he shot Adams. Now had he committed only a small offense it would have been much more probable that his story was true, for in such case while he might well have so desired to escape the consequences of even a slight infraction of law as to run away when he got a. chance, yet it would be improbable that he would commit the highest crime known to the law in avoidance of the unimportant consequences of its violation in 'a minimum degree; while on the other hand, having committed heinous offenses, crimes which would entail upon him years of imprisonment, if not death, his motive to escape would be so much more powerful as to legitimately afford ground for an inference, by the jury that it drove him to murder, and that he did not run away, as he testified, but that lie took the life of his captor, as the State’s evidence went to show.—Rex v. Clewes, 4 Car. & Payne, 221.
But it is in the other aspect of the case, the aspect involving a 'conspiracy, that the reasons for receiving evidence of the offenses committed at the 'Standard Oil Company’s place become more cogent, and the neces-. sity for such evidence more apparent. As upon the theory of the State one of the defendants shot Adams and the other Kirkley, it was necessary for the State to make a case on the trial of this indictment against *15both, of them for tbe murder of Adams upon which both would be answerable for Iris death though one did not set in motion the force that killed him. The defendants when arrested were coming from the direction of the Oil Company’s place. They had seen the officers shortly before come into a saloon where they ivere. They 'seemed there to (wince some consciousness that the officers might be, after them. Leaving there they were, together a few minutes in the street before the officers accosted them. This was an opportunity to pre-concert resistance to the officers or efforts to escape should they be arrested. It seems they expected the officers to take their accounts of their identity as employes of the. Southern Kailway as true and thus escape arrest. Relying perhaps in some measure on this they were probably not in a satisfactory attitude for resistance when the officers told them they would have to go to the station house. The statement as to 'who they were was false and must have been preconcerted. The first shot, was fired by Miller, who was in charge of Adams, walking behind Kirldey and Duncan. Immediately thereupon Duncan shot Kirldey. Such are the tendedes of the State’s evidence. From all this the jury might or might not have inferred preconcert in the shooting. If Miller and Duncan had not been seen together before going into the saloon there would have been less ground to infer conspiracy to kill to avoid imprisonment. If neither of them had been guilty of any offense authorizing their arrest the basis of inference of conspiracy to kill -would have been weak indeed. If one had been guilty of a trifling offense, and the other -of the -felonies committed earlier in the night the basis for such an inference would 'have been only a little less weak. But if both were shown to have been guilty of the several great, crimes committed at the Standard Oil Company's office that night they had a comm unit\) of‘interest, and each a great interest, in -conspiring together to prevent capture and imprisonment, and by proof of the existence of such common interest, furnishing a. powerful motive for their remaining together and acting to the last extremity together to the security of each other from incarceration, the basis for *16tbe inference on the part of the jury that they acted under “a aonmumty of design ’’ that one of them shot Adams and the other Kirldey in carrying out a previous understanding to protect each other from the great peril that threatened them both, was infinitely strengthened. That peril and the motive it bred could only be gotten before the jury by evidence of the other offenses committed by the defendants, and the tendency of that evidence went legitimately to the establishment of such preconcert of action on the part of the defendants as imports the guilt of both of the .murder of Adams.—Mason & Franklin v. State, 42 Ala. 532" court="Ala." date_filed="1868-06-15" href="https://app.midpage.ai/document/mason--franklin-v-state-6507584?utm_source=webapp" opinion_id="6507584">42 Ala. 532, 539; People v. Parl, 27 Cal. 572" court="Cal." date_filed="1865-07-01" href="https://app.midpage.ai/document/people-v-pool-5435740?utm_source=webapp" opinion_id="5435740">27 Cal. 572.
The principles upon which we hold that evidence of other offenses committed by the defendants is admissible, bear no analogy to that upon which evidence of former difficulties between the parties to a personal ren-counter under investigation is received. In this latter class of cases the evidence is, under proper circumstances, received to show the state of feeling between the parties to the rencounter, it 'is confined to former troubles between such parties, and the occurrences of the former difficulties and not the merits or particulars of them are. admissible. But in the case at bar there is no suggestion of any former difficulty between the deceased and the defendants, there is no question of ' personal feeling between them at all involved. The other offense® are allowed in evidence to show a motive for committing the offense under investigation. The existence of this motive depends upon the inquiry whether the defendants committed the other offenses, and of course proof that they did commit them must needs involve' evidence a® to the particulars of those offenses, evidence of the several acts which enter into and constitute them.
There, was evidence going to show that as many as eighteen shots were fired at tbe place of the killing. The evidence that only three of the shells in Adams’ pistol were empty after the shooting and five in Kirk-ley’s tended to show that both the defendants fired shots at that time and place, and there was no error in receiving it.
*17defendants’ witness Fay lraying testified on cross-examination “that be rented a room over Gelder’s restaurant [the room above referred to as, upon one tendency of the evidence, having been rented for the party to which defendants belonged] on the day before the shooting, the place where Frank Brown, the porter, was; that he furnished the money himself and rented the room for himself, and that he made the money with which the room was rented,” was asked this question by the State: “Where did you get the money with which you rented the room?” This question was irrelevant. The witness having just sworn that the money belonged to him and that he had made it himself, there was no ground for any assumption that tins interrogatory would or might elicit competent testimony to the effect that he got the money from the gang of men, defendants among the rest, who were in and about the room the day before the shooting; so that defendants’ failure to object to the question cannot be excused upon that theory. And not having objected to the question, they were not entitled to have the responsive answer, viz., “I played cards for it,” excluded. And, moreover,, this evidence of Fay had a tendency to emphasize his-testimony that defendants were not concerned in the renting of the room, and thus rather to benefit than to injure them, in rebutting other evidence before the jury going to show that all the party including defendants ei e concerned in renting the room. That they were all so concerned was a pertinent fact on this tidal as tending to prove the connection of the defendants with the crimes committed at the Oil Company’s office.
Certainly there are parts of the opinion in Ex parte Nelles (58 Ala. 268" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/ex-parte-nettles-6509787?utm_source=webapp" opinion_id="6509787">58 Ala. 268) proper to be read by counsel in moment on a trial such as this was. The whole of the opinion was read in argument by State’s counsel jury, and as a whole it was objected to. The comd committed no error in overruling the objection the mede.
We think it was proper to be gotten before the jury that Glams and Kirkley had information in a general " occurrences at the Oil Company’s place when .n.(.,sted the defendants. Their then knowledge *18on that subject would seem to be a part of the immediate environment of the homicide giving color to the acts of the officers. But apart from this, the fact that Weir had informed the officers about what had occurred out there could not have prejudiced the defendants on this trial. — Code, § 4333.
•■In the foregoing opinion all the points treated of in briefs of appellants’ counsel are either expressly discussed or covered by general propositions. Many exceptions were reserved to the admission in evidence of responsive answers to questions which were not objected to. These exceptions are, of course, unavailing. In many other instances there were objections to questions which were not followed by the reservation of exceptions to adverse rulings of the court upon the objections. This was also abortive to present any question for review. For the rest — exceptions which were properly reserved, but which were not discussed by counsel — the court 'has examined and considered them en banc, and found them to be so without merit as that a discussion of them would serve no good purpose.
We find no error in the judgment and it ihust be affirmed; and the day for the execution of the defendant Miller .having passed, this court fixes Friday, the 28th day of June, 1901, for the execution of the sentence of death imposed upon said Frank Miller.
Affirmed.