Tennison v. State

ANDERSON, J.

— The proof by Ora Slaton, in a conversation between the defendant and deceased, that defendant told deceased he had better not testify against him, though of slight probative force, was in the nature of a threat, and was properly admitted. .

Evidence incriminating another must relate to the res gestae, and not to conduct, declarations, or alleged confessions of the party on whom it is attempted to cast suspicion. — McGehee v. State, 171 Ala. 19, 55 South. 159; Levison v. State, 54 Ala. 520.

The previous declarations of the witness Lena Pitts were not admissible for the purpose of showing that Oscar Pitts, and not the defendant, was the' guilty party, but they were admissible as going to the credibility of the witness. She had testified as to facts damaging to the defendant, and which tended to connect him with the homicide,' and a previous statement by her that she did not see how they got Fletcher, this defendant, into it was inconsistent with her testimony against him. If she made such a remark, it was a circumstance for the jury to consider in weighing her subsequent testimony, for it ivas inconsistent with her evidence and of her knowledge of the facts narrated against the defendant. The trial court erred in not permitting the defendant to cross-examine this witness by asking her as to statements and declarations made by her which were inconsistent with her testimony; the time and place of making same having been sufficiently laid.

Charge 20, refused the defendant, if not. otherwise bad, was abstract and misleading. The testimony of Pitts did not show any conspiracy between him and the defendant, but tended- to show that Pitts was not a party to the killing, and if there was a conspiracy, it was not established by the evidence of Pitts.

Charge 21, requested by the defendant, if not otherwise bad, invaded the province of the jury, as there was other evidence from which the jury could find the defendant guilty, even if they did not believe the evidence of Oscar Pitts.

Charge 23, refused the defendant, if not otherwise bad, was abstract, as there was testimony other than that of Lena Pitts tending to corroborate Oscar Pitts.

The other rulings upon the evidence were free from error, and a detailed discussion of same can serve no good purpose.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.