Blount v. State , 49 Ala. 381 ( 1873 )

BRICKELL, J.

— The motion in arrest of judgment was properly overruled. That a verdict is contrary to the charge of the court, or against the evidence, is the proper subject of a motion for a new trial, but not of a motion in arrest of judgment, wbicb is always founded on matter appearing on the record. Williams & Daniel v. Br. Bank Montgomery, 3 Ala. 504.

. 2. The verdict was responsive to the issue, ascertained and declared the guilt of the appellants, and authorized the judgment rendered. That the words “ as charged in the bill of indictment,” or words.of similar import, are not added to the finding of guilty, does not render the verdict incomplete. The law supplied them by referring the. finding to the indictment, and the offence therein charged. State v. Jones, 5 Ala. 666.

2. The assault with which the appellants were charged was committed on persons having in custody one Franklin Floyd. These persons, with their prisoner, had stopped at the house of Brasil. The defendants came to Brasil’s and were busily talking together, but of what they were talking the witness could not say. A short time after this, and within about a quarter of a mile of Brasil’s, the assault was made, the appellants being of the assailing party. The appellants objected, and excepted to the admission of the evidence that they were busily talking together. The evidence was properly admitted. The conduct, demeanor, and expressions of the accused at or about the time of the offence with which he is charged, are always admissible evidence. Their value is to be determined by the jury, and depends upon their connection with other evidence, criminatory or exculpatory. Johnson v. State, 17 Ala. 623.

3. The remaining evidence objected to may be thus grouped. The declarations and acts of persons belonging to the assailing party, who were not on trial, were offered in evidence, and objected to by the appellants, because it was not shown that they and these persons had a common design. Acts and declarations of some one of the appellants, at or about the time of the assault, were admitted in evidence generally, against the objection of the appellants, severally made. This evidence, we think, was properly admitted. It all falls within the narrowest definition of res gestee. Dandy v. Humphries, 35 Ala. 624. The acts and declarations were contemporaneous with the main fact, the assault, and illustrative of its character and the connection of appellants with it. It was not necessary to show, as an independent fact, a community of design between the appellants and those whose acts and declarations were received in evidence. They and appellants were with the party making the assault. This presence was evidence of a community of design to go to the jury. “ In the trial of Lord George Gordon for treason, the cry of the mob who accompanied the prisoner on his enterprise was received in evidence as forming part of the res gestee, and showing the character of the principal fact.” 1 Greenl. Ev. § 108. On the same principle all the evidence objected to was admissible.

We are not able to discover any error in the record, and the judgment of the court below is affirmed.