Henry v. State

• Decision Date: 25 July 1895
• Citation: 19 So. 23,107 Ala. 22
• Parties: HENRY v. STATE. [1]
• Court: Alabama Supreme Court

19 So. 23

107 Ala. 22

HENRY v. STATE. ^[1]

Supreme Court of Alabama

July 25, 1895

Appeal from circuit court, Bibb county; John Moore, Judge.

Levi Henry was convicted of burglary, and appeals. Affirmed.

Upon the trial of the case, as is shown by the bill of exceptions the state introduced as a witness Jack Melson, who testified among other things, that on Sunday, March 17, 1895, the smokehouse of his wife, Sallie Melson, was broken into; that the smokehouse had been broken into several times before, and he did himself, some 120 steps therefrom, to watch during the day; that between 1 and 2 o'clock that day he saw the defendant coming towards the smokehouse; that he walked straight to the smokehouse door, broke a link in the chain by which the door was fastened, opened the door, and went inside; that the witness walked up to where he was, and that when the defendant started towards the door, he closed it whereupon the defendant struck him upon the head with an ax threw open the door, and ran off; that he recognized the defendant as the man who broke into the smokehouse, and that he was positive that he was the man. This witness further testified that, on the morning of the next day, he went with several other men to an adjoining plantation, and told the owner that he had come to see if he could identify any of the hands on his place who had broken into his smokehouse the day before; that, upon Mr. Goodson (the owner of the place) calling up some of his hands, the witness said neither of them was the man; that thereupon the defendant was called and thereupon the witness replied, in the presence of the defendant and Mr. Goodson and the men who had gone with him, "I am not quite satisfied," and at the same time winked at the other men who came with him. The solicitor then asked the witness the following question: "Why did you say that you were not satisfied after you saw the defendant?" The defendant objected to this question, because it called for the uncommunicated motive or reason of the witness. Thereupon the solicitor said "that he expected to show by the witness that he had agreed, beforehand, with the other men who had come with him, that, if he recognized the man who struck him, he would say that he was not quite satisfied. The defendant objected to the evidence as offered on the further ground that it was a conversation between third parties, and not in his presence. The court overruled the objection, and permitted the witness to testify as to what had passed between him and the other men before they came to Goodson's plantation, and to this ruling the defendant duly excepted. the witness then testified to substantially the facts which the solicitor stated he expected to prove as to the conversation with the men who went with him to Goodson's place. This witness further testified that he went directly from the Goodson plantation to the justice of the peace, and made affidavit that the defendant was the man who entered to smokehouse, and procured a warrant for his arrest. The defendant objected to this evidence, and moved to exclude the same from the jury, on the grounds that it was illegal and irrelevant; that the witness could not be corroborated by proof of his declarations made when the accused was not present. Thereupon "the court stated that he would exclude from the jury what the witness...