Simmons v. State

• Decision Date: 13 February 1913
• Citation: 61 So. 466,7 Ala.App. 107
• Parties: SIMMONS v. STATE.
• Court: Alabama Court of Appeals

61 So. 466

7 Ala.App. 107

SIMMONS v. STATE.

Court of Appeals of Alabama

February 13, 1913

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Henry Simmons was convicted of violating the prohibition law, and he appeals. Affirmed.

D. Isbell, of Guntersville, and W.R. Bradford of Albertville, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

PELHAM J.

On the trial of the defendant for a violation of the prohibition laws, the solicitor asked one of the state's witnesses if he had heard one Rains say in the presence of the defendant where he got the bottle of whisky that had been found in his (Rains') possession, and from whom he got it. The defendant objected to this question "because illegal and incompetent," and reserved an exception to the action of the court in overruling the objection. The witness to whom the question was propounded was the sheriff of the county and it was shown by the evidence that the sheriff had arrested the defendant and taken him in the presence of a justice of the peace, and that while there in the custody of the sheriff, accused of the crime, but before a trial of any kind had been entered upon, the said Rains had stated in the presence of the defendant and others that "Simmons [the defendant] come to him and asked him if he wanted anything and he told him that he would like to have a quart, and he asked him [[Simmons] ] [the defendant] the price, and he told him that it was a dollar and a quarter. And that he gave him $1.25, and he, defendant, went off, and came back to the store, and he, Rains, went to the buggy, and got it out of the buggy."

It is well settled in this state that proof may be made of what was said in the presence and hearing of the accused, and of his acquiescence or silence, if the statement was of such a nature as to involve an accusation of guilt, and the circumstances such as would naturally call for a reply, and the accused party is in such a situation that he could and would probably or naturally respond. Campbell v. State, 55 Ala. 80; McAdory v. State, 62 Ala. 154; Garrett v. State, 76 Ala. 18; Williams v. State,

81 Ala. 1, 1 So. 179, 60 Am.Rep. 133; Kirby v. State, 89 Ala. 63, 8 So. 110; Avery v. State, 124 Ala. 20, 27 So. 505; Davis v. State, 131 Ala. 10, 31 So. 569; Powell v. State, 59 So. 530.

The statement shown to have been made in this case was one naturally calling for a response from the defendant; it was in effect, a challenge to him to assert his innocence if not guilty, and he was in a situation in which he would likely and probably respond to it. It is no objection to the admissibility of the evidence that the defendant was in custody at the time. Jones v. State, 156 Ala. 175, 180, 47 So. 100; Raymond v. State, 154...