Tillison v. State, 6 Div. 473.

• Decision Date: 25 July 1946
• Docket Number: 6 Div. 473.
• Citation: 27 So.2d 43,248 Ala. 199
• Parties: TILLISON v. STATE.
• Court: Alabama Supreme Court

27 So.2d 43

248 Ala. 199

TILLISON v. STATE.

6 Div. 473.

Supreme Court of Alabama

July 25, 1946

Lewey Robinson, of Birmingham, for petitioner.

Wm N. McQueen, Atty. Gen., and Willard W. Livingston, Asst Atty. Gen., opposed.

LAWSON Justice.

Frank Tillerson, alias Frank Tillison, was convicted of the possession for sale of untaxed whisky without permission of the Alabama Alcoholic Beverge Control Board, and of illegal possession of the abovementioned whisky.On appeal to the Court of Appeals the judgment of the trial court was affirmed.The cause is here on petition by the defendant for writ of certiorari to the Court of Appeals to review and revise the opinion and judgment of that court.

The only question dealt with in the opinion of the Court of Appeals relates to the admissibility of certain statements or declarations alleged to have been made by the defendant.Hence our review is limited to a consideration of that single point, as we only review the Court of Appeals upon questions decided and do not make an original examination of the record of the proceedings in the circuit court to determine if such record shows error apart from the principles stated by the Court of Appeals.Folmar v. State,217 Ala. 410, 116 So. 112;Skipper v. State,220 Ala. 78, 124 So. 118.

It is the contention of defendant that the statements alleged to have been made by him, as set out in the opinion of the Court of Appeals, were improperly admitted in evidence in that they are in the nature of confessions and prior to the admission in evidence the State had not shown that such statements were voluntarily made.Aside from a consideration of whether these were inculpatory statements, they were, in our opinion, a part of the res gestae and for that reason were admissible.The possession of illegal liquors is a continuing offense and in decisions by the Court of Appeals, in some of which certiorari has been denied by this court, the res gestae doctrine has been held to include acts and statements of a defendant made at the time of a raid or a search for illegal liquors.Riley v. State,27 Ala.App. 376, 172 So 680;Ballas v. State,27 Ala.App. 276, 171 So. 383, certiorari denied, 233 Ala. 227, 171 So. 384.As we construe the facts as set out in the opinion of the Court of Appeals, the statements alleged to have been made by defendant were all uttered while the officers were engaged in the search for the alleged illegal liquors, which was but one continuous transaction.Armor v. State,63 Ala. 173;Blair v. State,211 Ala. 53, 99 So. 314;Jordan v. State,81 Ala. 20, 1 So. 577;Glass v. State,147 Ala. 50, 41 So. 727;Wharton's Crim.Ev., Vol. 1, § 495, p. 755(11th ed.).

The rules relating to res gestae on the one hand and to admission of confessions on the other, are separate and distinct.A res gestae statement is admissible, notwithstanding the fact that it may not be admissible as a confession or an admission.16 C.J. 576;22 C.J.S., Criminal Law, § 667;Williams v. State,147 Ala. 10, 41 So. 992;Head v. State,44 Miss. 731;Bronson v. State,51 Tex.Cr.R. 17, 127 S.W. 175.

While we agree with the conclusion of the Court of Appeals that the trial court did not err in admitting in evidence the statements alleged to have been made by defendant in that they were, under the rule in this jurisdiction, admissible as part of the res gestae, we do not approve of the following statement contained in the opinion of the Court of Appeals: 'All statements made by an accused during the progress of, and immediately prior to an arrest, relevant to the offense charged, are of the res gestae and as such admissible in evidence.'We think that the statement above quoted is too broad in that it is subject to the construction that statements made at the time of the arrest are always admissible under the res gestae doctrine irrespective of the fact that the arrest may have occurred long subsequent to the time of the commission of the offense.The rule is stated in 16 C.J. 576, § 1116;22 C.J.S., Criminal Law, § 667, as follows: 'Ordinarily the acts, conduct, and statements of accused at the time that he surrendered or was arrested, and after he was arrested, are so separated in time, place, or circumstance from the commission of the offense as to lack the spontaneity necessary to make them a part of the res gestae; but they are admissible as part of the res gestae under some circumstances, as where the arrest was made or attempted shortly after the commission of the offense and the acts or statements were done or made while the mind was still acting under the exciting cause of the occurrence.'Brown v. State,11 Ala.App. 321, 66 So. 829.

We are also of the opinion that the following quotation from the opinion of the Court of Appeals may be misleading as to the rule prevailing in this jurisdiction relative to the admission in evidence of inculpatory admissions made by a defendant: 'Further, these statements of the appellant made as above said would have to be supplemented and reinforced...