Cunningham v. State ( 1928 )

On Rehearing.

At the earnest insistence of defendant’s counsel we have again considered the questions involving the court’s rulings respecting two papers, termed “notes,” offered in evidence by defendant. The first of these ■ is as follows:

“Mrs. Payilone Scott — Lum is gone to Anniston and he said for me to stay with you tell he come back he is gone to town with old man Grashem Paylone I never would a found whear you lived if I haden stoped in Alexandria I sure have drove a long ways way from Oleburn country just to see you and you have got to do what you promest.”

‘It is clear that, if this note had been identified as the note handed to Mrs, Pauline Scott on the night of the crime by the party Who assaulted her, it would have been very material and a part of the res gestse. Before, however, it can be relevant, it must be so connected and identified. Mrs. Scott denied that she had ever seen it. The defendant’s witness Pearce testified that shortly after the cxfime he went to the Scott house; that Pauline told him about a note that was given her by the assaulter; that he examined the house and went down the road looking for the note; that he found nothing. Some time after that, and after defendant had had one trial, how long after the witness did not know and the record does not disclose, this witness Pearce went back down to the Scott house. The house was vacant, and Jim Scott, the dead man’s brother, to whose house Pauline went after the assault, had moved away. At that time witness claims to have found the paper offered in evidence:

“Between the house she lived in and between the house that Mr. Jim Scott lived in, at a little sewer pipe, where it i-uns down by a little drain ditch.”

These facts do not identify the paper as being the note handed Mrs. Scott; nor is there sufficient similarity in the wording of the note offered and that to which Mrs. Scott testified to warrant its admission in evidence. Ex parte Edmunds, 203 Ala. 349, 83 So. 93.

The second note claimed to have been found in a tin snuff box in the ashes in the fireplace of the Scott house, long after the crime, is dependent on the first note. We see no reason to change our ruling on these two questions.

The application is overruled.