Bailey v. The State

Bailey v. The State. Murder. (Decided June 30, 1913. 63 South. 73.) Trial; Objection to Evidence; Time. — Where the question gave notice of the anticipated answer, and defendant permitted the question to be asked and answered without objection, his motion to exclude the evidence came too late, and was properly overruled. Appeal from Marengo Circuit Court. Heard before Hon. John T. Lackland. Viney Bailey was convicted of murder and she appeals. Affirmed. No counsel marked for appellant. R. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State. [MAJORITY — SAYRE, J.] SAYRE, J. — This case was properly tried and the result must be affirmed. The court and the jury might have found that there was a conspiracy between defendant and Joe McGay to take the life of deceased. — Tanner v. State, 92 Ala. 1, 9 South. 613. It was immaterial for the purposes of this case whether or not Cleveland Trimble was a party thereto. Without affirming anything as to the competency of the witness Allen to say whether the bones about which he testified were human bones, defendant can take nothing by her exception to his testimony on that point, because a reasonable interpretation of the bill of exceptions is that the quéstion which elicited the answer gave notice of the anticipated answer, and, notwithstanding this, defendant waited for the answer without objection. Under these circumstances, the motion to exclude was properly overruled. There is no merit in the other exceptions. Affirmed. Dowdell, C. J., and McClellan and de Graefenried, JJ., concur.