Ferguson v. State , 149 Ala. 21 ( 1907 )

McCLELLAN, J. —

The case has on two former occasions engaged the attention of this court, and is reported in 134 Ala. 63, 32 South. 760, 92 Am. St. Rep. 17, and 141 Ala. 26, 37 South. 448. The appellant appeals from a judgment of conviction of manslaughter in the first degree. The facts of this offense -are shown by this record to be, for present purposes, in substantial accord with those presented on the former appeals, and reiteration is unnecessary. -Errors are assigned, and we consider them seriatim.

The first, second, and third assignments are based, in the order stated, upon the action of the trial court in denying defendant’s motion to exclude the testimony of witnesses Washburn and Tolbert on the ground,- in substance, that it did not tend to show a conspiracy to grievously harm or kill the deceased; in denying defendant’s motion to exclude all the testimony offered by the state on the ground that it did not tend to connect defendant with the killing of deceased; and, lastly, in refusing to defendant the affirmative charge. A conspiracy need not be established by direct proof of an express agreement between the conspirators. On the contrary, it may be shown by circumstantial evidence only. Nor is it necessary, to fix criminal responsibility upon co-conspirators participating in a criminal act, that it be committed or done in respect of time or place or manner according to any prearranged plan. — Ferguson’s Case, supra; Morris’ Case, 146 Ala. 66, 41 So. 280. Here the question of conspiracy vel non between defendant and his son was one for the jury, and the whole evidence introduced, including that of the witnesses Wash-burn and Tolbert sought to be excluded by the motions mentioned above, was properly submitted for the consideration of -the jury; and, there being testimony tending to establish a conspiracy between the son and defendant, though met in conflict by testimony offered on the part of the defendant, the general affirmative charge for the defendant was well refused by the court.

The eighth assignment is predicated upon the overruling of the motion for a new trial. It has been repeatedly declared that such action, in a criminal. case, is not reviewable. — Thomas v. State, 139 Ala. 80, 36 South. 734.

Assignments 4, 5, 6, and 7 relate to refused charges requested by defendant. Charge 2 was properly refused, because it predicates acquittal upon reasonable doubt of defendant’s presence “aiding and abetting” the actual slayer, and pretermits in the hypothesis all reference to a conspiracy of which there was testimony tending to establish. Charge 4 was well refused, since it declares that there can be no consipracy to commit manslaughter. This very question was considered and decided adversely to appellant, in 141 Ala. 20, 37 South. 448, on his appeal; and we reaffirm that decision. Charges 7 and 8 were also improper, because they took from the jury the question of conspiracy, and, besides, were invasive of the jury’s province.

This disposes of all the assignments of error, and we have further investigated the record and find no error therein. So the judgment of the circuit court is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.