Everage v. State

113 Ala. 102

• Court: Supreme Court of Alabama
• Decided: November 15, 1896
• Status: Published

Opinion

MoCLELLAN, J.

The issue being whether the defendants agreed and conspired together to whip Jack Cox, the witness Dave King testified as follows : "Dick Everage, (one of the defendants) asked me what I knew about the Johnnie White Cap fellows. He wanted to know if I saw a light come from his house that Sunday night before. He asked me did I hear anyone call out the Beeves boys, (also defendants). I told him ‘No.’ He said that he had heard that I did. He turned around and said, ‘While you are following up we Johnnie White Cap fellows, you had better attend to your own business . ’ ” And. the witness Tisdale testified in substance that soon after the alleged' whipping of Jack Cox, Dick Everage toldliim that “he belonged to a band bound by oath to whip sassy negroes,” and that Furney Everage, some of the Reeves boys, Luke Hardin, George and .Jess Reeves, who are defendants, also belonged to this band. The defendants’ counsel moved severally to exclude the testimony of these witnesses as to all the defendants except Dick Everage, and also for an instruction to the jury limiting such testimony to Dick Everage. These motions were overruled. Manifestly the effect and operation of this evidence should have been limited to the defendant who made the statements deposed to, as they were not made in the prosecution of the objects of the conspiracy alleged, but after such conspiracy had .been carried out and the purposes of the unlawful combination had been accomplished; and none of the other alleged conspirators were present when they were made. The court erred in declining to so limit the effect of this evidence.

The other rulings below complained of here are free from error.

Reversed and remanded.