Dismukes v. State , 83 Ala. 287 ( 1887 )

SOMEBYILLE, J.

— 1. When an offense may be committed by different means, or with different intents, such means or intents are, by tbe express provisions of tbe statute, authorized to be alleged in the same count of the indictment in the alternative. This changes the common law on this subject, and was intended to prevent a multiplicity of counts. Code, 1886, § 4383 ; Horton’s case, 53 Ala. 488. Under this statute, the indictment in the present case was good, and the demurrer to it was properly overruled.

2. The exclamation of Miss Harris, as testified to by her father, was made almost immediately on the happening of the alleged burglarious act, was explanatory of her exit from the room produced by the act, and, therefore, so intimately connected with the act itself as to characterize and explain it, in such a manner as to become a part of the ves gestee. The' exclamation in question, being uttered so near the scene of the transaction, and being apparently spontaneous in its nature, coming as it did instantly from a party wronged by the commission of the crime charged, was free from all suspicion of device, premeditation or afterthought, and can not be regarded in any respect as merely narrative of a past transaction. We see no error in the admission of this evidence. — Ala. Gr. So. R. R. Co. v. Hawk, 72 Ala. 182; Wesley v. State, 52 Ala. 182; Garrett v. State, 76 Ala. 18; M. & M. R. R. Co. v. Ashcroft, 48 Ala. 15; Whart. Cr. Ev. §§263, 270; 2 Addison on Torts, § 1375; State v. Malisse, 58 Amer. Rep., note, pp. 184-194; State v. Middleham, 62 Iowa, 150; Lander v. People, 104 Ill. 248.

3. The evidence, as to some one having made a burglarious attempt on the same premises on a previous night, was admitted by the court in view of the statement of the solicitor, that the defendant, in the course of the trial, would be so connected with it as to make it relevant. Upon failure of the State to introduce the requisite evidence to make it relevant. it was on motion excluded from the jury. This practice, though it should be followed with great caution, especially in trials for crimes of a high grade, is held not to be a reversible error. — Jordan v. State, 79 Ala. 9; Childs v. State, 55 Ala. 28; 1 Greenl. Ev. (14th Ed.), § 51a; McCurry v. Hooper, 12 Ala. 823.

We discover no error in the record, and the judgment is affirmed.