The age-herald., 1901-05-26

d recognized exception to the rule against proof of other offenses on the trial of that charged in the indictment, to ad- init such proof when 1t goes to show motive for the act under investigation, and this aside from any question of con- spiracy; flames vs. State, SS Ala. 37, CT; Gassnheimer vs. State, 52 Ala. S1S, SIS; Rex vs. Clewes, 4 Car. & Payne, 22l; Goerson vs. Com. 90 Pa. 3SS; Ingram vs. State, S9 Ala. PAT. and we do not under stand that the prosecution is cut off rom such proof in any case by the cir cumstance that the ulterior purpose for which the crimianl act is done Is appar- ent on the case as presented without It; ana certainly error could not be com m1tted in receiving competent evidence of motive though it be cumulative mere ly and unnecessary. But such evidence was not cumulative merely and unneces- sary in this case, even 1t be considered as bearing upon one of the defendants only and involving no question of con- cert between them. Let 1t be applied to Miller for example. He testified that he did not shoot Adams or Kirkley, but merely ran away when the opportunity offered. The testimony for the State was that he shot Adams. Now had he committed only small offense it would have been much more probable that his story was true, for in such case while he might well have desired to escape the consequences of even a slight infraction of law as to run away when he got chance, yet it would be improbable that he wuld commit the highest crime known to the law in avoidance of the unimport- ant consequences of it's violation In a medium degree; while on the other hand, having committed heinous offenses, crimes which would entail upon him years of imprisonment. if not death his motive to escape would be so much more powerful as to legitimately afford ground for an inference by the jury that 1t drove him to murder and that he did not run away, as he testified, but that he took the life of his captor, as the states evidence went to show.-Rex ys. Clewes, 4 Car. 6 Payne, 221.
 But it is in the other aspect of the case, the aspect involving a conspiracy, that the reasons for receiving evidence of the offenses committed at the Stand ard Oil Company's place become more cogent, and the necessity for such evil dence more apparent. As upon the the ory of the State one of the defendants shot Adams and the other Kirkley, it was necessary for the State to make a case on the trial of this indictment against both of them for the murder of Adams upon which both would be an- swerable for his death, though one did
 
 him. The defendants when arrested were coming from the direction of the oil companys place. They had seen the officers shortly before come into a sa- loon where they were. They seemed there to evince some consciousness that the officers might be after them. Leav ing there they were together few min utes in the street before the officers ac- costed them. This was an opportunity to preconcert resistance to the officers or efforts to escape should they be ar rested. It seems they expected the off cers to take their accounts of their iden- tity as employees, of the Southern Rail- way as true and thus escape arrest. Re- lying perhaps in some measure on this they were probably not in a satisfactory attitude for resistance when the officers told them they would have to go to the station house. The statement as to who they were was false and must have been preconcerted The first shot was fired by Miller, who was in charge of Adams, walking behind Kirkley and Duncan. Immediately thereupon Duncan shot Kirkley Such are the tendencies of the States evidence. From all this the Jury might or might not have inferred precon- cert in shooting. If Miller and Duncan had not been seen together before going into the saloon there would have been less ground to infer conspiracy to kill to avoid Imprisonment. If neither of them had been guilty of any offense author izing their arrest the basis of the infer ence of conspiracy to kill would have been weak indeed. If one had been gull ty of a trifiing offense, and the other of the felonies committed earlier in the night the basis for such an inference would have been only a little less weak. But if both were shown to have been guilty of the several great crimes com
 
 office that night they had a community of interest, and each a great interest, in conspiring together to prevent capture and imprisonment, and by proof of the existence of such common interest, fur nishing a powerful motive for their re- maining together and acting to the last extremity together to the security of each other from incarceration, the basis for the inference on the part of the jury that they acted under "a community of design" that one of them shot Adams and the other Kirkley in carrying out previous understanding to protect each other from the great peril that threat ened, them both was infinitely strength ened. That peril and the motive it bred could only be gotten before the jury by evidence of the other offenses committed by the defendants, and the tendency of that evidence went legitimately to the establishment of such preconcert of ac- ton on the part of the defendants as imports the guilt of both of the murder or Adams.-Mason & Franklin vs. State, 42 Ala. 532 539; People vs. Parl, 27 Cal. 572.
 The principles upon which we hold that evidence of other offenses committed by the defendants Is admissible, bear no analogy to that upon which evidence of former difficulties between the parties to a personal rencounter under investi- gation is received. In this latter class of cases the evidence is, under proper circumstances, received to show the state of feeling between the parties to the rencounter, it is confined to former troubles between such parties, and the occurrence of the former difficulties and not the merits or particulars of them Is admissible. But in the case at bar there Is no suggestion of any former difficulty between the deceased and the defend ants, there is no question of personal feeling between them at all involved. The other offenses are allowed in evi- dence to show a motive for committing the offensa under investigation. The ex- istence of this motive depends upon the inquiry whether the defendant com mitted the other offenses, and of course proof that they did commit them must needs involve evidence as to the partic- ulars of those offenses, evidence of the several acts which enter into and con stitute them.
 There was evidence going to show that as many as eighteen shots were fired at the place of the killing. The evidence that only three of the shells in Adams pistol were empty after the shooting and five in Kirkley's tended to show that both the defendants fired shots at that time and place, and there was no error in receiving it.