Delaney v. State, 1 Div. 137

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, J.
• Citation: 204 Ala. 685,87 So. 183
• Parties: DELANEY v. STATE.
• Docket Number: 1 Div. 137
• Decision Date: 02 December 1920

87 So. 183

204 Ala. 685

DELANEY
v.
STATE.

1 Div. 137

Supreme Court of Alabama

December 2, 1920

Appeal from Circuit Court, Mobile County; C.A. Grayson, Judge.

Walter Delaney was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Sayre, Somerville, and Gardner, JJ., dissenting. [87 So. 184]

Brooks & McMillan, of Mobile, for appellant.

J.Q. Smith, Atty. Gen., and B.B. Chamberlain, of Mobile, for the State.

McCLELLAN, J.

The appellant, Delaney, has been sentenced to suffer death for the murder of Selig Jachnitz, alias Sam Block. He was indicted jointly with Robert Edwards, alias "Socks," and Dan Charley. There was severance and separate trial of this appellant. The evidence required the submission to the jury of the issue of this defendant's participation in the homicide.

It appears from the bill of exceptions that after the arrest of these three men and while they were in custody they were brought together, more than once it seems, in the presence of officers and the solicitor, where the accused men and some of the others present, including the solicitor, participated in the conversations then taking place and in the discussions touching the murder of Block. The defendant objected to the recital by witnesses of what was said by Edwards and Dan Charley on these occasions, upon the ground, mainly, that in the absence of defendant, the alleged conspiracy having been accomplished through the killing of Block, the subsequent statements of coconspirators were inadmissible. Since the defendant was shown to have been present on these occasions, the well-founded doctrine illustrated in Everage v. State, 113 Ala. 102, 21 So. 404, relied on as the basis of this particular objection, was not applicable, and the trial court did not err with respect to that doctrine when referred to those particular occasions.

Neither Edwards nor Charley was examined on the trial of this defendant. What took place, what was said at any interview or discussion, after the homicide was committed, at which this defendant was present, could only be admissible against this defendant, on his separate trial, for these purposes: (a) To show a voluntary, competent confession or other incriminatory admission by this defendant; (b) to show an admission resulting (if so) from silence when this defendant was directly charged (if so) by some one present with guilty participation in this crime; or (c) in rebuttal by the state to show a statement or statements, made on the occasion of these interviews or conversations, contradictory of any testimony given by the defendant on his trial. These purposes should have confined and directed the character and method of the presentation to the jury of the matters of admissible evidence, derived (if so) from these interviews at which this defendant was present, to the consideration of which the prosecution was...