69 So. 370 | Ala. Ct. App. | 1915
Lead Opinion
The contention in appellant’s brief that the record contains no order of court showing the appointment of the special solicitor who signed the indictment and prosecuted the case is fully met by the return to the writ of certiorari, which sets out such an order that is in all things complete.
In the absence of any disclosure in the record that an objection was taken in the court below during the progress of the trial to the insufficiency of the oath that was so administered to the jury, it will he presumed on appeal, when the record, as here, shows nothing to the contrary, that the correct oath was administered.—Code, § 7274; Allen’s Case, 71 Ala. 6; Storey’s Case, 71 Ala. 335.
While it is permissible for a defendant to adduce evidence tending to show that another person other than himself committed the crime, yet it is not competent to this end to show that such person fled from the community soon after the commission of the crime, or even that such person had confessed or admitted his guilt; since, though flight and confessions or admissions are competent evidence against the party making them, because they are his own acts or declarations and against
Refused charges 5, 6, 7, 8, 26, and 41 were fully covered by given charges 2, 3, and 4.
Refused charge 34 (if correct, 1 Mayf. Dig. 172, § 26) was covered by given charge 29.
The portions of the oral charge excepted to are, when construed, as the law requires, in connection with the remainder of the charge, free from error.—Ballanger v. Shumate, 10 Ala. App. 329, 65 South. 416; Fowlkes v. Lewis, 10 Ala. App. 543, 65 South. 724.
We have discussed only the questions urged in brief; but have examined the entire record. We find no reversible error, and the judgment of conviction is affirmed.
Affirmed.
Rehearing
ON REHEARING.
Undoubtedly, this is a correct statement of the law as demonstrated by the authorities cited, and we do not wish to be understood as now intending to depart from it one jot or tittle; but, in the application of it in the original opinion to the case at hand, we overlooked a principle, equally as well settled and pertinent here, under which, notwithstanding the doctrine stated, we are of opinion that the defendant was entitled to prove the flight of said Holloway, and this principle is that known in the law as res gestae. In Levison v. State, cited as the leading case in the original opinion to sustain our holding that the fact of the flight of another is not admissible as evidence for defendant, it is said, as indicating that it is admissible when the evidence of the flight is so connected with the evidence of the commission of the crime by that other as to form part of the res gestae, as follows: “It is certainly true that a person accused of crime may show his own innocence by proof of the guilt of another; [but] the evidence of [the] guilt [of that other] must relate to the res gestae, and not to the declarations or conduct of the party, subsequent to and having no immediate connection with the crime.”
In McGehee v. State, 171 Ala. 23, 55 South. 159, our Supreme Court, citing in support the Levison Case, supra, also say: “It is, of course, proper for a defendant to show that another * * * committed the crime with which he was charged, but such proof is confined to substantive facts, and cannot include conduct or admissions, or even a direct confession, unless they are a part of the res gestae.”
See, generally, Wigmore on Evidence, p. 200, § 139 et seq.
The doctrine applies to acts and declarations of strangers to the controversy, as well as to acts and declarations of the parties.—Ency., supra, p. 666; Wesley v. State, 52 Ala. 182; Smith v. State, 52 Ala. 407; Robertson v. Smith, 18 Ala. 220; Nelson v. State, 130 Ala. 83, 30 South. 728; Collins v. State, 138 Ala. 57, 34 South. 993.
If, then, it was competent — as was held in the opinion, and as is undoubtedly the law — for defendant to prove that Holloway, and not himself, and without collusion with him, committed the crime, then, under the doctrine of res getse, it was equally competent for defendant to show, as a part of the res gestae of the commission of the offense by said Holloway, that the latter, immediately upon inflicting on deceased the alleged
The term “flight,” or “fleeing from justice,” signifies, in legal parlance, not merely a leaving, but a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest. Such consciousness and pur
If, then, it is competent, as we hold, to prove as a part of the' res gestae of the difficulty between Holloway and deceased that Holloway immediately left after such difficulty, then it is competent, for the purpose of showing his motive in leaving, to prove that he has never since been seen or heard of in that community, although the latter fact is not a part of the res gestae of the difficulty. Of course* in any case where the leaving is not so closely connected in point of time and otherwise with the difficulty that it might be said that it was instinctive upon that occurrence, a- part of the res gestae of it, then neither the fact of the leaving, nor the fact that the person has not since been seen or heard of, is admissible; but where the leaving is so closely connected as to become a part of the res gestae of the difficulty, then not only the fact- of' the leaving, but the fact that the person has concealed himself, whether by going away from the community or by hiding himself in the community, so that he has not been since seen or heard of, is admissible evidence; since it takes both a leaving the scene of the difficulty and a. subsequent hiding out, evasion, or concealment in the community or a leaving of the community for parts unknown, to. constitute flight. When, therefore, our Supreme Court says, in effect, as before pointed out, that flight of another may be proved
In the case at bar it appears without dispute that Holloway and deceased were in a difficulty out in the yard in the dark, when the defendant came out to it. Defendant’s evidence tends to show that when he so came out deceased had already been cut, and had received at the hands of Holloway the knife wounds from which deceased died, and that Holloway was being-pulled away from deceased when defendant came out, and that Holloway was then pushed out of the gate. In this connection we think that defendant should hare been allowed to prove, as he offered to do, that Holloway went on off, that is, left the scene of the difficulty, immediately, and had not been seen or heard of since in that community. There is no evidence tending to show that defendant aided or abetted or conspired with Holloway to do the act; but the undisputed evidence tends to show that just as the difficulty between Holloway and deceased was ended, an independent difficulty there occurred between defendant and deceased. Deceased says, according to his dying declarations, and his witnesses say, that defendant, and not Holloway, cut him (deceased). Defendant and his witnesses deny that defendant cut deceased at all. As to who cut deceased out there in the dark that night, where none could see clearly, and where most of the parties and the others present were drinking, whether defendant or Holloway, as to which
We also held in the opinion, and we think properly so, that it was competent for the state to show, as an incriminating circumstance against defendant, that defendant, soon after the. difficulty, also left, but returned shortly afterwards in a change of clothes (in overalls,) as this, we said, afforded some basis, in connection with the other circumstances in the case, for an inference that it was defendant’s purpose in putting on the overalls to conceal blood stains on his other clothes; and we also held, and we think properly, that it was not error for the court to decline to permit the defendant to show that when he left he did so upon the invitation of others. If the state had offered evidence tending to show flight on the part of defendant, then it would have been permissible for defendant to offer evidence tending to
We are likewise still of the opinion that the testimony of the physician as to the appearance of the wounds on deceased, to the effect that “the knife struck here [indicating], and the cut went back in this direction,” was entirely competent, as shown by the authorities cited in the original opinion. This holding is, in our judgment, clearly not in conflict with our holding in Rigell v. State, 8 Ala. App. 46, 62 South. 977, and cases there cited, as is too manifest, we think, from an examination of those cases, to require discussion.
Application for rehearing granted, judgment of affirmance set aside, and a reversal and remandment of the cause ordered.