James v. State , 115 Ala. 83 ( 1896 )

PEN CURIAM.

The appellants were indicted and convicted of robbery. On the trial one James Bowling, who had pleaded guilty and was not on trial at the time, was examined as a witness for the State. The evidence of this witness tended to show the guilt of the defendants, and that he was an accomplice in the commission of the offense. Against the objection of the defendants, the solicitor was permitted to prove a conversation between him and the witness, had in the absence of the defendants and without their knowledge. This was purely hearsay evidence and its admission clearly erroneous and detrimental to defendants.

The court also erred in allowing the State to prove that the witness Bob Smitherman had made previous statements to others similar to these testified to by him as a witness. A witness cannot corroborate his testimony by showing that he had made similar statements to others.—Green v. The State, 96 Ala. 29, 32 ; McKelton v. The State, 86 Ala. 594,

It may be that the principle of law intended to be asserted in charge numbered 2, requested by the defendants, is correct; but as framed,-the charge is argumentative, and calculated to mislead, and’ the court, did not err in its refusal.

The indictment avers that the defendants feloniously took “ four one hundred dollar bills of the lawful currency of the United States of America, a further description of which is to the grand jury unknown,” etc. The indictment on its face was sufficient and not subject to demurrer.—Leonard v. The State, ante, p. 80. On the trial there was evidence tending to show, that the witness before the grand jury gave a proper and definite description of the money alleged to have been taken, and that in point of fact, its description was not ‘1 unknown ” to the grand jury, as averred in the indictment. The rule is stated as follows : “When a fact órname is known or proved to the grand jury, there is no warrant in the law for averring such fact or name is unknown. * * * When it appears on the trial that the fact or name was known, a conviction on such indictment should not be allowed.” “It becomes a question of variance between averment and proof.” Winter v. The State, 90 Ala. 637; Duval & Pelham v. State, 63 Ala. 18; Wells v. The State, 88 Ala. 239.

An indictment can be easily framed so as to avoid all difficulty which might arise, on the question of a variance, by making proper averments in different counts of the indictment.

The law has been so often declared with reference to an alibi we deem it unnecessary to do more than refer to some of the recent decisions.—Henson v. The State, 112 Ala. 41; Towns v. The State, 111 Ala. 1; Albritton v. The State, 94 Ala. 76.

What has been said, shows that the case must be reversed, and we deem it unnecessary to consider in detail all the assignments of error, many of which are purely technical.

Reversed and remanded.