Smith v. State , 52 Ala. 407 ( 1875 )

MANNING, J.

1. The plea of former acquittal upon an indictment for robbery is not sufficiently pleaded in this cause. It should have set out the indictment. We are not able to see from the plea that the acquittal of the crime of robbery exempts defendants from prosecution for the offence of an assault to commit murder. The plea was, therefore, correctly held to be insufficient. Henry v. State, 33 Ala. 389; Foster v. State, 39 Ib. 229 ; 1 Bishop’s Crim. Law, §§ 680 et seq.

2. It was not error to admit against these defendants what was said and done by one of their associates in their presence, at the time and place the offence charged is supposed to have been committed. According to the evidence Alexander White, who, it is set forth, has escaped, was a confederate. What he said and did was admissible, both on the ground that he was a confederate of the defendants, cooperating with them, and also because it was a part of the res gestee. 4

3. The question arising out of the declarations made by the witness upon whom the offence is alleged to have been committed, soon after the commission of it, to third persons, and the admission of those declarations by testimony of the party and of such third persons, is not presented as it should be by the recitals in the bill of exceptions. There is nothing there to show either how long after the transaction the declarations were made, or how far distant from the scene the third persons were to whom they were made. The bill of exceptions produces the impression that there was nearness both of time and space, but it is wholly indefinite as to the degree of nearness.

The declarations, under certain circumstances, might be admissible as part of the res gestee. In Grandy v. Humphries (35 Ala. 617), R. W. Walker, J., said: “ When it is said that declarations, to be admissible as part of the res gestae, must be contemporaneous with the principal transaction, it is not meant that they shall be coincident in point of time with the main fact. If they appear to spring out of the transaction, if they serve to elucidate it, and are made so shortly after the happening of the main fact as to stand in the relation of unpremeditated result to it, the idea of deliberate design in making them being fairly precluded by the surrounding circumstances, then they may be regarded as contemporaneous.” Wesley v. The State, p. 182.

The bill of exceptions is so vague that we cannot tell whether these conditions did or did not attend the making of the declarations admitted as evidence in the case before us; and it does not profess to set out all the evidence in the cause. Under these circumstances, and under the rule that the party excepting must by his bill of exceptions affirmatively show error in the instructions and rulings of the court below, we cannot decide that there was such error.

The judgment of the circuit court is affirmed.