Summary
In Hardy v. State, 23 Ala. App. 552, 129 So. 308, the court was of the opinion that it was doubtful the defendant in that case heard the statement and on that account declined to admit it. No such doubt appears here. Indeed, the testimony of witness Espy discloses that defendant replied to the statement, saying: "You have already let the cat out of the water."
Summary of this case from Munson v. StateOpinion
7 Div. 718.
June 17, 1930.
Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.
Sam Hardy was convicted of transporting prohibited liquor in quantities of five gallons or more, and he appeals.
Reversed and remanded.
S.W. Tate, of Anniston, for appellant.
Even if there was a conspiracy, no confession by one coconspirator, after the commission of the act, could be admissible against the other when made outside the presence of that other. Hunter v. State, 112 Ala. 79, 21 So. 65; Phoenix Ins. Co. v. Moog, 78 Ala. 305, 56 Am. Rep. 31; McAnally v. State, 74 Ala. 16; Bachelor v. State, 216 Ala. 360, 113 So. 67; Rowlan v. State, 14 Ala. App. 20, 70 So. 953; Everage v. State, 113 Ala. 102, 21 So. 404; Blair v. State, 211 Ala. 55, 99 So. 314. The alleged confession of Vardaman, if appellant had been present, and if it had been sworn that appellant was guilty, this testimony, being by an accomplice, would not have been sufficient upon which to convict appellant. Code 1923, § 5635; Alexander v. State, 20 Ala. App. 432, 102 So. 597; Chancellor v. State, ante, p. 504, 127 So. 912.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Appellant was convicted of the offense denounced by Act of the Legislature of Alabama approved September 6, 1927 (Gen. Acts Ala. 1927, p. 704) — transporting prohibited liquor in quantities of five gallons or more.
The evidence, other than that hereinafter discussed, on behalf of the state was circumstantial, but sufficient to support the verdict.
Over the objection of appellant, the state was allowed to introduce testimony by the sheriff of the county, as to a "confession," or "admission of guilt," after the appellant and Vardaman were both in jail, charged with the offense, on the part of one Vardaman, alleged to have been jointly guilty with appellant.
As was said by Judge Samford, in the opinion in the case of Lancaster v. State, 21 Ala. App. 140, 106 So. 609, 613, so we now say here:
"* * * The declaration admitted in evidence was after the common enterprise was at an end, and in such cases subsequent acts or declarations are only admissible as against the party making them, except in certain cases hereinabove treated. 1 Greenleaf, p. 371, par. 233; Martin v. State, 89 Ala. 115, 8 So. 23, 18 Am. St. Rep. 91."
Without discussing the "cases hereinabove treated," referred to by Judge Samford, it is sufficient here to quote, as he does in the opinion cited, the rule in such matters as laid down in 1 Greenleaf on Evidence, p. 330, par. 197, to wit:
"It must plainly appear that such conduct was fully known, or the language fully understood by the party before any inference can be drawn from his passive silence. The circumstances, too, must be (not) only such as afforded him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply from men similarly situated."
Applying the rule just quoted, we are of the opinion that appellant's objection to the question put to the sheriff by the solicitor, calling for information as to statements made to the said sheriff by the said Vardaman, above referred to, should have been sustained. It does not at all "plainly appear that the language (was) fully understood" by the appellant, in such sort that any inference (of guilt) could be drawn from his passive silence. Upon the contrary, it appears doubtful whether appellant even heard the statements made to the sheriff by Vardaman.
For the error in overruling appellant's objection to the question indicated, to which action exception was duly reserved, the judgment of conviction must be reversed, and the cause remanded.
Reversed and remanded.