Opinion
6 Div. 620.
May 8, 1934.
Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.
R. C. Cummings and Will Johns were convicted of violating the prohibition law, and they appeal.
Affirmed.
On the trial, defendants sought to introduce in evidence the dying declaration of Bill Johns (who was with the defendants at the time of the arrest), "for the purpose of showing the man realized death was approaching and he made a statement with reference to the ownership and the knowledge his father and Cummings had about the possession of the liquor, in the presence of both defendants and that officer when they were carrying him back to the city or the town of Blountsville."
The court sustained the objection of the state to the question calling for this testimony, stating, "That applies only in homicide cases."
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Defendants and a third party were caught on a public road in a car that contained 15 gallons of whisky. Although at the exact time of the arrest the car was stationary, there was evidence that it had been moving and had just stopped. This was sufficient to present a jury question. Clark v. State, 23 Ala. App. 467, 126 So. 896. The state introduced evidence tending to connect both defendants with the whisky. Defendants' evidence tended to show that neither of them had any connection with or knowledge of the whisky. In this state of the evidence a jury question was presented. Dotson v. State, 24 Ala. App. 216, 135 So. 159; Id., 223 Ala. 229, 135 So. 160; Elrod v. State, 23 Ala. App. 412, 126 So. 188. The state of intoxication or sobriety of defendants at the time of the commission of the offense was admissible as part of the res gestæ. Williford v. State, 20 Ala. App. 265, 101 So. 505; Martin v. State, 24 Ala. App. 242, 133 So. 743. It was immaterial whether or not the arresting party had a search warrant. Tranum v. Stringer, 216 Ala. 522, 113 So. 541. The dying declaration of Bill Johns was not admissible in this case, as it was not part of the res gestæ. Dying declarations are admissible only in homicide cases where the death of the declarant is the subject of the charge. 30 C.J. 260; Allsup v. State, 15 Ala. App. 121, 72 So. 599; Blackburn v. State, 98 Ala. 63, 13 So. 274.
Appellants, tried jointly, were convicted of the offense of transporting prohibited liquor (whisky) in a quantity of five gallons or more. Gen. Acts 1927, p. 704.
The testimony, without dispute, showed that the appellants and a third party, who was killed by the pursuing officer, were caught on a public road in a car that contained fifteen gallons of whisky.
Neither of the appellants, it is true, was driving the car; but the circumstances disclosed by the evidence made the guilt, vel non, of each of them a question for the jury's decision. See Dotson v. State, 24 Ala. App. 216, 135 So. 159, certiorari denied Id., 223 Ala. 229, 135 So. 160.
The appellants' condition with reference to being drunk or sober at the time of their being apprehended with the whisky was properly allowed to be detailed in the testimony, as being of the res gestæ. Martin v. State, 24 Ala. App. 242, 133 So. 743; Williford v. State, 20 Ala. App. 265, 101 So. 505.
It was immaterial as to whether or not the arresting officer had a search warrant. Tranum v. Stringer, 216 Ala. 522, 113 So. 541.
Dying declarations are admissible in evidence only in homicide cases where the death of the declarant is the subject of the charge under investigation. 30 C.J. 260; Allsup v. State, 15 Ala. App. 121, 72 So. 599; Blackburn v. State, 98 Ala. 63, 13 So. 274.
We find no error of a prejudicial nature to have been committed on the trial, or in the proceedings, in either case. Both judgments of conviction are due to be, and are, affirmed.
Affirmed.