Ellis v. State

Decision Date09 May 1922
Docket Number6 Div. 37.
Citation93 So. 334,18 Ala.App. 544
PartiesELLIS v. STATE.
CourtAlabama Court of Appeals

Rehearing Dismissed May 30, 1922.

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Arthur Ellis was convicted of violating the prohibition laws, and he appeals. Reversed and remanded.

Pinkney Scott, of Bessemer, for appellant.

Ben. G Perry, Sol., and Arthur Green, Deputy Sol., both of Bessemer for the State.

SAMFORD J.

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 gestæ, 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 defend...

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3 cases
  • Hall v. State, 5 Div. 357
    • United States
    • Alabama Court of Appeals
    • 15 Enero 1952
    ...Ala.App. 273, 124 So. 125; Storment v. State, 24 Ala.App. 223, 133 So. 312; Nalls v. State, 19 Ala.App. 146, 95 So. 591; Ellis v. State, 18 Ala.App. 544, 93 So. 334; Hanson v. State, 27 Ala.App. 147, 168 So. The application for rehearing is ordered overruled. ...
  • Caraway v. State
    • United States
    • Alabama Court of Appeals
    • 9 Mayo 1922
  • Lett v. State
    • United States
    • Alabama Court of Appeals
    • 29 Mayo 1923
    ...of defendant was properly admitted. The statement of the defendant was not a part of the res gestæ, as was the fact in Ellis v. State, 18 Ala. App. 544, 93 So. 334. that case the statements were made as a part of and contemporaneous with the manufacture of the whisky, while in this case the......

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