James v. State

• Decision Date: 28 June 1897
• Citation: 22 So. 565,115 Ala. 83
• Parties: JAMES ET AL. v. STATE.
• Court: Alabama Supreme Court

22 So. 565

115 Ala. 83

JAMES ET AL. v. STATE.

Supreme Court of Alabama

June 28, 1897

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

Newton James and others were convicted of robbery, and James appeals. Reversed.

The defendants set up the defense of an alibi, which the evidence tended to show. Among the charges requested by the defendants, to the refusal to give each of which they separately excepted, were the following: (2) "Proof tending to establish an alibi, though not clear, may nevertheless, with other facts of the case, raise doubt enough to produce an acquittal; a reasonable doubt of the defendants' presence at the time and place necessary for the commission of the crime would necessarily raise a reasonable doubt of their commission of the crime." (8) "If the jury believe from the evidence that the grand jury, which found the indictment under which the defendants are here prosecuted, knew when it found said indictment the full and correct description of the four one hundred dollar bills said to have been taken, the defendants cannot be convicted under this indictment." (9) "If the jury believe from the evidence that the grand jury which found the indictment on which the defendants are here tried knew at the time it found said indictment a further description of the bills which the defendants are charged with taking than it stated in said indictment, the defendants cannot be convicted under this indictment." (10) "If the jury believe from the evidence that the grand jury at the time it found this indictment knew that the four one hundred dollar bills said to have been taken consisted of one United States silver certificate and three United States gold certificates, they cannot convict the defendants under this indictment."

H. A Jones and Ellison & Thompson, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

PER CURIAM.

The appellant was indicted and convicted of robbery. On the trial one James Bowling, who had pleaded guilty, and was not on trial at the time, was examined as a witness for the state. The evidence of this witness tended to show the guilt of the defendants, and that he was an accomplice in the commission of the offense. Against the objection of the defendants, the solicitor was permitted to prove a conversation between him and the witness, had in the absence of the defendants and without their knowledge. This was purely hearsay evidence and its admission clearly erroneous and detrimental to defendants.

The court also erred in allowing the state to prove that the witness Bob Smitherman had made previous statements to others similar to those testified to by him as a witness. A witness cannot corroborate his testimony by showing that he had made similar statements to others. Green v. State, 96 Ala. 29, 32, 11 So. 478; McKelton v. State, 86 Ala 594, 6 So. 301.

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