Hicks v. State , 11 Ala. App. 290 ( 1914 )

BROWN, J.

The indictment in this case was returned by a grand jury at the August term, 1912, of the circuit- court of Marion county, charging the defendant with a violation of the prohibition law. On-the trial of the case, the state offered evidence tending to support the indictment and to show that the defendant was guilty; the defendant likewise offered evidence tending to show that he was not guilty. The state’s witness Mack Aycock testified that he was before the grand jury in August, at the time the indictment was found, and that on pay day at Brilliant mines in May or June previous thereto he was at Brilliant, and as he was walking through the camp some one “hollered,” and when they came up there were three men in the party, one of them being the defendant, who told witness that “they had a load of good wildcat whisky,” and witness gave him a dollar and a half for a quart of the whisky; that the whisky he got was white whisky; and that the transaction occurred in Marion county about 8 o’clock at night on pay day in May or June, 1912. The witness Turnip-seed then testified:

“I was with Mack Aycock in August, 1912, when he got some whisky from a man. I saw the man hand him the stuff.”

Over the objection of the defendant, this witness was allowed to testify to what the “man” said, and that he spoke like he was mad, and said something about getting his money back. After this testimony had been given by the witness over defendant’s objection, he made a motion to exclude it, and the court overruled the motion. The record shows that the sale testified to by Ay-cock was in May or June, 1912, and the facts detailed by this witness occurred in August, and it was not shown that the “man” referred to by the witness was the defendant. On this state of the evidence, the court committed error in the admission of the testimony and in refusing to exclude it on motion of the defendant.

We cannot assume, in the absence of evidence in the record to that effect, that the transaction testified to by Turnipseed as occurring in August was the same that the witness Aycock had testified to as occurring in May or June, or that the man inferred to by Turnip-seed in his evidence was the defendant.

After the evidence was closed, the court made the following remark to the jury:

“The court sustains the objection of the defendant to the testimony of Aycock, Tarwater, and Turnipseed, and excludes the testimony as objected to by defendant.”

In condemning the practice of admitting all the evidence adduced and then instructing the jury as to its effect, the Supreme Court has said:

‘Although the practice of admitting illegal evidence and afterward excluding it is discountenanced from its obvious tendency to work injustice in consequence of the difficulty of eradicating from the minds of the jury the impression which the evidence may have made (Carlisle v. Hunley, 15 Ala. 624), yet, as the record shows a clear and unequivocal charge excluding it from the consideration of the jury, however much we may condemn the practice, we cannot, under these circumstances, presume that any injury has been the result of its admission.” — Florey v. Florey, 24 Ala. 241.

The general remark of the court previously quoted, in our opinion, was not sufficiently specific to render harmless the effect of the- admission of this illegal evidence. The defendant, under the circumstances disclosed by the record, was entitled to a specific instruction to the jury pointing out the illegal evidence and excluding it from their consideration, accompanied by an appropriate admonition to the jury that this evidence which the court had excluded should not be considered by them. — De Graffenried v. Thomas, 14 Ala. 684; Florey v. Florey, 24 Ala. 241; Thomas v. Henderson, 27 Ala. 529; Rives v. Montgomery South Plank Road Co., 30 Ala. 99; Shields & Walker v. Henry & Mott, 31 Ala. 56; Wills & Hobbs v. Rand’s Adm’rs, 41 Ala. 200; Booker v. State, 76 Ala. 24. The effect of the general statement of the court to the jury in this case imposed on the jury the duty of separating the illegal evidence from the legal evidence, a duty clearly imposed by law upon the court.

There was no error in allowing the witness Tarwater to testify as to the conduct of the defendant when he was arrested and his attempt to escape or avoid arrest, and the fact that the arrest was made without a warrant, assuming the officer had no authority to make the arrest, would not render this evidence inadmissible. The evidente of flight or attempted flight is admitted on the theory that such acts are prompted by a consciousness of guilt and are in the nature of an admission and a circumstance tending to show guilt. — Jones on Evidence (2d Ed.) § 287; Jackson v. State, 106 Ala. 12, 17 South. 333.

For the error above pointed ont, the judgment of the circuit court is reversed, and the cause remanded.

Reversed and remanded.