Hunter v. State , 112 Ala. 77 ( 1895 )

BRICKELL, C. J.

The declarations of Lovelace to the prosecutor made in the absence of the defendant, were of course inadmissible ■ except upon the theory of the existence of a conspiracy between the defendant and Lovelace. The principle upon which such declarations are admitted is, that the conspirators, by the act of conspiring, “have jointly assumed to themselves the attribute of individuality so far as regards the prosecution of tha common design ; thus rendering whatever is said or done by any one in furtherance of that design, a part of the ree yestie, and therefore the act of all.” — 8 Greenleaf on Ev., § 94. It is necessary, before such evidence can be admitted, that a foundation should be laid by proof addressed to the court, prima facie sufficient to establish the existence of such .a conspiracy. — McAnally v. State, 74 Ala. 9. But such evidence will generally, from the nature of the case, be circumstantial. — 3 Greenleaf on Ev., § 96.

Applying these principles to the evidence, we are of opinion the court properly admitted the declarations made by Lovelace to the prosecutor. True, there was no direct evidence of a previous conspiracy, but there was circumstantial evidence of sufficient weight to authorize the submission of the question to the jury upon whom the duty rests of ultimately determining the common guilt. — Me Anally v. State, supra. Lovelace does not appear to have been a stranger at the house of the defendant. He was not only admitted without question, but proceeded immediately to an inner room, where he met defendant. He made no inquiry whether defendant was at home; he seems to have known this. If the prosecutor is to be believed, the defendant was evidently prepared in advance, to carry out the common design ; for he at once appears with his gaming appliances. We need not consider the evidence in the further development of the scheme, except to mention' as the logical result, that the prosecutor’s money was taken away from, him. On this state of the evidence, it might very well have been found that the enterprise was a joint one.

Affirmed.