Collins v. State , 137 Ala. 50 ( 1902 )

DOWDELL, J.

The court properly overruled the motion to quash the venire. The return of the sheriff showed that Breitling’, one of the regular jurors drawn for the week for which the trial was set, was not summoned; his name, therefore, was properly omitted from the list of jurors served on the defendant. Under the statute, the regular jurors drawn and summoned for the week in which the day for the trial "was set, together with the special jurors drawn from the jury box by the presiding judge, constituted the special venire, a copy of Which the law required to be furnished the defendant. — 'Code, § 5005; Burton v. State, 107 Ala. 108.

As the two special jurors, Garbrew and Stephen, in whose names mistakes occurred, the court followed the direction of the statute in discarding them and supplying their places with two other persons summoned by the sheriff under the order of the court from the. qualified citizens of the county. — Code, § 5007. Consequently there was no error in the action of the court in refusing the motion to quash on the grounds relating to these persons. See also section 4997 of the Code.

The declaration or statement made by the woman Carrie Collins upon leaving the store of Griffin, testified to by the witness Thompson, and which was admitted in evidence against the objection of the defendant, should have been excluded. This' statement was made five minutes or more before the shooting of the deceased by the defendant at the depot, and formed no part of the res gestae of the. difficulty in which the shooting occurred. Tt was not contemporaneous in point of time with the difficulty insulting in the shooting, nor does the evidence. show that tills statement bore any causal relation to the shooting. Nor was it admissible as the declaration of a co-conspirator. The evidence was not- sufficient to authorize the inference of a conspiracy participated in by the woman Carrie Collins independent of the statement made by her, and unless a conspiracy had been shown in which she participated, her statement would not be competent evidence against the defendant. The second statement of the woman Carrie 'Collins, testified to by the. witness Owens, made at the depot, formed a part of the res gestae of the. transaction ini which the shooting was done, that resulted .in the death of the deceased. The statement bore a causal relation to the difficulty; indeed, it provoked the difficulty that terminated in the tragedy. It ivas one continuous transaction from the statement so made to the killing; all transpiring in a very short space of time. The statement, therefore, may be said to have been contemporaneous with the main fact, and constituted a part of the res gestae, and was competent in evidence.

For the error pointed out, the judgment must be reversed and the cause remanded.

Iieversed and remanded.