When this cause was before us on certiorari at the last term (Lancaster v. State, 106 So. 6171), we called attention on rehearing to the contention of the counsel of the state touching certain testimony tending to show defendant's acquiescence and co-operation in efforts of Capt. Lollar to suppress testimony, and suggested that, if such contention be true, the testimony was properly admitted.
Following this suggestion, the Court of Appeals restored the cause to the rehearing docket for further consideration. On October 27, 1925, the Court of Appeals handed down an amplified and extended opinion, and also made special response to the application for rehearing. 106 So. 609.
The present proceeding by certiorari is to review the same questions in the light of the extended opinion. The Court of Appeals finds that it does not sufficiently appear from the evidence that defendant heard the instructions of Capt. Lollar, as deposed to by witness Hartley, whose testimony is quoted in the original as well as the later opinion, viz.:
"They will put you in a room over there, and don't have anything to say. He cautioned us about this dictaphone, or whatever you call it, in the wall, and says: 'If you say anything, they will get it on that, and they will have it just the same as if you were making a statement yourself; the biggest thing you can say is to say "no, know nothing about it." ' "
The Court of Appeals finds further error, not noted in the original opinion, in the admissions of similar statements made by Capt. Lollar on the train coming to Birmingham. This error is rested upon a want of evidence showing the defendant heard these statements.
These further findings of fact are within the exclusive prerogative of the Court of Appeals, and will not be reviewed by this court.
Writ denied, and judgment affirmed.
All the Justices concur.
1 Ante, p. 2. *Page 77