Hall v. State , 86 Ala. 11 ( 1888 )

SOMEEYILLE, J.

The court did not err in excluding from the jury the testimony of the State witness as to Nernan’s declaration identifying the pistol as one belonging to the deceased. This pistol was found on the second day after the homicide, being picked up in the -locality where the killing had occurred. The language of Neman — “This is Bob’s pistol” — was no part of the res gestee, or act of killing, which was completed two days previously. It was a mere comment, or observation of aby-stander, as to a collateral fact, and was clearly hearsay. The witness Neman should have been called into court to testify as to the alleged ownership of the weapon by the deceased.—Wharton’s Crim. Law (8th Ed.), § 262-263, 270; Johnson v. State, 59 Ala. 37; Horton v. State, 53 Ala. 488; Garrett v. State, 76 Ala. 18; Sylvester v. State, 71 Ala. 17; Ala. Gr. So. R. Co. v. Hawk, 72 Ala. 112; s. c., 47 Amer. Rep. 403.

Affirmed.