Dismukes v. State

• Citation: 83 Ala. 287,3 So. 671
• Parties: DISMUKES v. STATE.
• Decision Date: 02 February 1888
• Court: Supreme Court of Alabama

3 So. 671

83 Ala. 287

DISMUKES v. STATE.

Supreme Court of Alabama

February 2, 1888

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

Indictment for burglary. The indictment in this case charged, in a single count, that the defendant, Tobe Dismukes, a freedman "broke into and entered the dwelling-house of W. H Harris, with the intent forcibly to ravish a female, whose name is to the grand jury unknown, or with the intent to steal; against the peace," etc. The defendant demurred to the indictment, because it alleged no specific intent, and because it alleged two different intents in the alternative and, his demurrers having been overruled, he pleaded not guilty. On the trial, as appears from the bill of exceptions W. H. Harris testified, on the part of the state, that one night in April or May, 1886, about 9 o'clock or later, he and his son, being aroused by his daughter, went around the house in opposite directions, and arrested the defendant near and under a window of the room occupied by his daughter and another young lady; that the defendant was under a work-bench within six or eight feet of the window, held a board or piece of plank, about three inches wide and two or three feet long, before his face, and begged them not to shoot him; "that a hole was previously broken in the middle and west pane of the window, the hole being stopped with paper; that paper was seen in the broken pane during the day, and found on the ground the next day;" that witness or his wife had money, jewelry, and other articles in the room, and this was known to the defendant; that his daughter "saw the impress of some one's hand, as it bulged the curtain, which was drawn close, and immediately ran into the adjoining room, where he and his wife were, and gave the information;" and that his daughter, "on running into his room, in her night-clothes, said that she saw some one at the window in her room." The defendant objected to the admission of this statement as evidence, and reserved an exception to the overruling of his objection. The witness further testified, "among other things, that some one attempted to raise the window in his daughter's room the night before, and left it raised with a piece of stick under it about two feet long, and he so found the window the next morning." The defendant objected to the admission of this statement as evidence, but the court admitted it at the time, "on the statement of the solicitor that he would connect the defendant with it;" to which ruling the defendant excepted. After all the evidence was closed, two other witnesses having been examined, "the state having failed to connect the defendant with said evidence," the court excluded it from the jury, on motion of the defendant; and the defendant excepted "to the action of the court in permitting said evidence to remain before the jury all that time."

W. H. Parks & Son, for appellant.

Thos N. McClellan, Atty. Gen., for appellee.

SOMERVILLE J.

1. When an offense may be committed by different means, or with different intents, such means or intents are, by the express provisions of the statute, authorized to be alleged in the same count of the indictment in the alternative. This changes the common law on this subject, and was intended to prevent a multiplicity of counts. Code, 1886; § 4383; Horton's Case, 53 Ala. 488.

Under this statute, the indictment in the present case was good, and the demurrer to it was properly overruled.

2. The exclamation of Miss Harris, as testified to by her father, was made almost immediately on the happening of the alleged burglarious act, was explanatory of her exit from the room produced by the act, and therefore, so intimately connected with the act itself as to characterize and explain it, in such a manner as to become a part of the res gestæ. The exclamation in question, being uttered so near the scene of the transaction, and being apparently spontaneous in its nature, coming as it did instantly from a party wronged by the commission of the crime charged, was free from all suspicions of device, premeditation, or afterthought, and cannot be regarded in any respect as merely narrative of a past transaction. We see no error in the admission of this evidence. Railroad Co. v. Hawk, 72 Ala. 112; Wesley v. State, 52 Ala. 182; Garrett v. State, 76 Ala. 18; Railroad Co. v. Ashcraft, 48 Ala. 15; Whart. Crim. Ev. §§ 263, 270; 2 Add. Torts, § 1375; State v. Molisse, 58 Amer. Rep. note, 184-194; State v. Middleham, 62 Iowa, 150, 17 N.W. 446; Lander v. People, 104 Ill. 248.

3. The evidence, as to some one having made a burglarious attempt on the same premises on a previous night, was admitted by the court in view of the statement of the solicitor that the defendant, in the course of the trial, would be so connected with it as to make it relevant. Upon failure of the state to introduce the requisite evidence to make it relevant, it was on motion excluded from the jury. This practice, though it should be followed with great caution, especially in trials for crimes of a high grade, is held not to be a reversible error. Jordan v. State, 79 Ala. 9; Childs v. State, 55 Ala. 28; 1 Greenl. Ev. (14th Ed.) § 51 a; McCurry v. Hooper, 12 Ala. 823.

We discover no error in the record, and the judgment is affirmed.

NOTE.

RES GESTÆ-DECLARATIONS. A declaration or statement, to be admissible as part of the res gestæ, must be made while the act to which it refers is being performed. Patterson v. Railway Co., (Mich.) 19 N.W. 761. Thus, declarations made by an injured person after he had returned to his home, and more than 30 minutes after the accident occurred, are inadmissible, Armil v. Railroad Co., (Iowa,) 30 N.W. 42; also, declarations explaining the manner in which an accident happened, made by the injured person while being conveyed from the scene of the accident, Martin v. Railroad Co., (N. Y.) 9 N.E. Rep. 505; and a narrative given by a party who was injured, after having been removed 20 or 30 rods from the place where the accident occurred, is not strictly or substantially contemporaneous with the transaction, and is inadmissible, Merkle v. Bennington Tp., (Mich.) 24 N.W. 776. But while it is essential that the declaration should be contemporaneous with or at least so connected with the main fact in issue as to constitute a part of the transaction, and thus derive credit from the main fact or act itself, to explain or characterize which it is offered in evidence, Conlan v. Grace, (Minn.) 30 N.W. 880, still it is not necessary that a declaration, to be a part of the res gestæ, should be precisely and astronomically contemporaneous and concurrent in point of time with the principal transaction, but rather that it be made voluntarily, unpremeditatedly, and spontaneously, and under the immediate and unconscious influence of the principal transaction; and be made at such a time, whether contemporaneous and concurrent or not, and also under such circumstances and conditions, as to exclude the idea of deliberate intent or design, Williamson v. Railroad Co., (Mass.) 10 N.E. 790; Armil v. Railroad Co., (Iowa,) 30 N.W. 42. Thus the voluntary statement made by an engineer while standing in his engine at the place where the casualty occurred, in view of its results, and from three to five minutes thereafter, is admissible, not being a narrative of a complete transaction, nor one which at the time had wholly passed away. Durkee v. Railroad Co., (Cal.) 9 Pac. Rep. 99. Declarations qualifying and giving character to an act are admissible, whether self-serving or not; but the act must be material to the issue. Brown v. Kenyon, (Ind.) 9 N.E. Rep. 283.

Upon the general subject of the res gestæ, and when declarations are a...