Tatum v. State , 131 Ala. 32 ( 1901 )

SI-IARPE, J.

The evidence against defendant being circumstantial he had the right to adduce legal evidence to show that another committed the offense with which he ivas charged. But neither for that or other purpose was he privileged to prove declarations made by the deceased before he was shot and which were not of the res gestae of the shooting concerning his previous or anticipated difficulties with one Rawlinson. Testimony of such declarations would have been hearsay merely and, therefore, defendant’s offer of such testimony was properly rejected. — Dodd v. State, 92 Ala. 61; Jackson v. State, 52 Ala. 305; Mose v. State, 35 Ala. 421; Owensby v. State, 82 Ala. 63.

In the absence of any testimony to connect Rawlinson with the crime, proof of 'a motive on his part to kill the deceased 'was not admissible to exculpate the defendant,' — Baker v. State, 122 Ala. 1; Josephine v. State, 39 Miss. 613. Rawlinson’s motives, however malignant, were while quiescent,, not at all inconsistent with similar motives on defendant’s part and his actual commission of the offense. For this reason the court properly refused to admit evidence to show deceased had prosecuted Rawlinson for an assault growing out of their attentions to a woman.

The court charged the jury among other things “if you believe from the evidence in, this case that the plea of an alibi was not interposed in good faith, or that the evidence to sustain it is simulated, false and fraudulent, then this is a discrediting circumstance, to which you may look in connection with all the other evidence in determining the guilt or innocence of the defendant,” and to this the defendant excepted. What was said of a plea of an alibi was inapt since there was not such separate plea, but it must have meant and been understood as having reference' to that phase of the defense wherein an alibi was sought to be proven under the general issue. So taken the charge was in line with the principles asserted in Albritton v. State, 94 Ala. 76, where it was said: “a fraudulent attempt to prove an alibi sustained by perjury will when detected be a circumtance of great weight against the prisoner.”

No error is found in the record, and the judgment will be affirmed.