Johnson v. State , 87 Ala. 39 ( 1888 )

STONE, C. J.

Dallas county has a jury system, secured to it by statute, which is peculiar to itself. — Sess. Acts 1882-83, p. 273; Ib. 1884-5, p. 192; Ib. 1886-7, p. 209. We are not informed that any objection was made to the formation of the grand or petit jury, and we find in the record no ground for objection to this part of the proceedings. Since the decision in Evans v. State, 80 Ala. 4, the jury law of Dallas county has been so changed, as that “whenever the judge of the Circuit, or the judge of the City Court of Selma, shall deem it proper to set two or more criminal cases for trial on the same day, said judge may draw and have summoned one jury, or one venire, for the trial of all such cases so set for one day.”

The chief objections to testimony have for their predicate that there was not sufficient evidence ot a conspiracy between the accused and others not on trial, to authorize the admission of the evidence. Much of the testimony to which this objection was interposed, consists of alleged declarations and statements made by the accused himself. These, being in their nature pertinent to the offense charged, and to the defendant’s participation therein, were competent evidence against him, whether there was a conspiracy or not.—3 Brick. Dig. 425-6, §§ 286 et seq.; Ib. 283, §§ 504 et seq.

There was, however, testimony received and excepted to, the legality o£ which depended on the establishment of a conspiracy to murder Frances Bodgers. The alleged conspiracy was between the defendant, one Collier, and one Lewis; the last two not on trial. In McAnally v. State, 74 Ala. 9, 16, we said: “In charges of crime which, in their nature, may be perpetrated by more than one guilty participant, if there be a previously formed purpose or conspiracy to commit the offense, then the acts, declarations and conduct of each conspirator, done or expressed in promotion of, or in relation to the object or purpose of such conspiracy, become the acts, declaration, or conduct of each co-conspirator, and may be] given in evidence against him. But, to allow such testimony to go to the jury, a foundation must be laid by proof sufficient, in the opinion of the judge presiding, to establish prima facie the existence of such conspiracy.”

The case of Williams v. State, 81 Ala. 1, contains a full collection and discussion of many authorities; and while it does not conflict in the least with the principles declared in McAnally's case, it lays down certain other principles that are not raised in this case. See, also, Amos v. State, 83 Ala. 1.

Under the principles declared in McAnally's case, we hold that the testimony of the witness Clark, considered in its entirety, establishes, if believed, at least a prima facie case of conspiracy to murder Frances Bodgers, and that the acts, declarations and conduct of each conspirator, done or expressed in apparent promotion of the common object, were competent evidence against each of the others. We speak of Clark’s testimony in its entirety, because it is immaterial at what stage of his examination he proved the conspiracy, if he proved it all.—Bedwell v. Bedwell, 77 Ala. 587.

What we have said relates to the competency of the testimony, and its sufficiency to make a prima facie case, so as to let in testimony of the acts, declarations and conduct of one, as evidence against the other. Its ultimate credibility and sufficiency to justify conviction, was a question for the jury. — McAnally’s case, supra. We find no errors in the admission of testimony.

It has been the settled rule of this court from its very organization, and never departed from, that we will not review the action of the primary court, in granting or refusing to grant a new trial.—2 Brick. Dig. 276; 3 Ib. 676; Bedwell v. Bedwell, 77 Ala. 587.

The judgment of the City Court is affirmed. And inasmuch as the day fixed for the execution of the prisoner is now passed, it is the judgment and order of this court, that on Friday, August 9, 1889, the said Willie Johnson be hanged by the neck until he is dead; and the sheriff of Dallas county is charged with the execution of this sentence, in strict conformity to the requirements of the statute. — Code of 1886, §§ 4665 to 4669, inclusive.

Affirmed.