Ellis v. State , 18 Ala. App. 544 ( 1922 )

On the trial defendant's counsel, on cross-examination of Dice, a state's witness, asked a certain question seeking to prove that one Gaither Parsons, who was arrested at the same time and place, stated to the officers making the arrests, and in the presence of defendant, that the still and everything connected with it was his, and that he alone was making the whisky. The court sustained the state's objections to these questions, and the defendant excepted.

The testimony was not admissible for the purpose of impeaching Parsons, as at that time Parsons had not testified, and defendant does not insist upon it as such, but does insist that it should have been admitted as part of the res gestæ of the offense. The evidence discloses that the crimes charged in the indictments were then and there being committed; the whisky was running out of the worm, and the possession of the still was then in either one or all of those who were present; the witness Parsons, as well as the defendant, was surprised by the officers. The statement of either one or all of them at that time would have been admissible against them, without proof of a predicate showing it to have been voluntary, on the ground that it was a part of the res gestæ, and, being a part of the res gestaelig;, was admissible for the defendant. Holyfield v. State, 17 Ala. App. 162, 82 So. 652; Oldacre v. State, 16 Ala. App. 151, 75 So. 827; Wesley v. State,52 Ala. 182; Smith v. State, 52 Ala. 407. As to what the answer of the witness would have been we cannot know, but later the defendant was permitted to prove by Parsons himself, and by three other witnesses, every fact favorable to defendant that could have been elicited in response to the question that had been overruled. The defendant therefore had the full benefit of the evidence.

The other questions propounded to this witness, as to statements made by Parsons at other times and places, called for facts not of the res gestæ, and objections to them were properly sustained.

What was reported to the witness Dice by Howton at a time when defendant was not present was immaterial, and properly excluded, as was also the testimony as to where witness left Otis Howton and Kirk Parsons.

Upon the recross-examination of the state's witness Dice, when being examined on rebuttal, the court sustained the state's objection to the following question:

"Don't you know that when you got to this still Sam Karr had been there for several minutes and Gaither (Parsons) then when you and Standifer walked up told you Sam Karr had caught him dead to right, and they had just as well turn Ellis and Hoyett loose; that they had not been there at all."

This question called for testimony which, if answered in the affirmative, would have been a declaration made at the time of the occurrence of the main facts, would tend to elucidate the fact of manufacture of the liquor or possession of the still, and to so harmonize with it as obviously to constitute one transaction (Wesley v. State, 52 Ala. 182), and made at a time when Parsons had had no time to meditate or to concoct an excuse (Oldacre v. State, supra). The answer would therefore have been material evidence; if "Yes," would have tended to prove the defendant's innocence, if "No," would have tended to impeach the testimony of the witness, such answer being in conflict with other testimony already in evidence. Moreover, this was a part of a conversation between all these parties and as to which conversation several witnesses had testified.

Charge 3 requested by the defendant is incomplete, and as here appears means nothing.

Charges 4 and 5 were covered by other written charges and by the oral charge of the court.

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

Reversed and remanded.