The questions reserved for consideration here relate to the admissibility of certain declarations made by Quinnie and Henry Loper, jointly indicted with appellant, but separately tried, some of which testimony appears in the foregoing statement of the case. The most damaging of these declarations appear to have been made nearly a year previous to the murder for which the defendant was on trial, and were not made in the presence or hearing of defendant. The theory upon which the admissibility of this testimony rests is that, when a conspiracy has been shown to exist for the commission of an offense, then the acts, declarations, and conduct of each conspirator, done or expressed in promotion of or in relation to the object or purpose of such conspiracy, become the acts, declarations, or conduct of each coconspirator, and may be given in evidence against him. As said, however, in McAnally v. State, 74 Ala. 9:
"But, to allow such testimony to go to the jury, a foundation must be laid by proof sufficient, in the opinion of the judge presiding, to establish, prima facie, the existence of such conspiracy."
See, also, Hunter v. State, 112 Ala. 77, 21 So. 65; Ferguson v. State, 149 Ala. 21, 43 So. 16; Smith v. State,133 Ala. 73, 31 So. 942; Brindley v. State, 193 Ala. 43,69 So. 536, Ann. Cas. 1916E, 177; Patterson v. State, 79 So. 459.1 In volume 3 of Wigmore on Evidence, section 1797, in discussing this question, is the following:
"The acts and admissions of an agent are available to charge the principal, when they occurred in the course of his employment, and of a coconspirator, when they occurred in the duration of the conspiracy."
Therefore the general rule is that declarations of an alleged coconspirator, made before the existence of the alleged conspiracy, are not admissible in evidence against the other coconspirators. State v. Gilmore, 151 Iowa, 618, 132 N.W. 53,35 L.R.A. (N.S.) 1084, and note.
The bill of exceptions discloses that it contains all the evidence which is material to the questions presented. A careful review of the testimony in the record, which has been read in consultation, fails to show, in our opinion, that there was sufficient proof to make out a prima facie case of conspiracy existing at the time of the alleged declarations embraced in the testimony admitted; said declarations having been made, as previously stated, about a year before the killing. Such being the case, therefore, the declarations of these codefendants were not admissible against the appellant here, and the admission of such testimony must work a reversal, as we are of the opinion that it was prejudicial to appellant's cause.
For the error indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.
1 202 Ala. 65.