Counsel for appellee insists that the record fails to show that exception was properly reserved to the introduction of the testimony of State's witness Connick regarding the declarations of the coconspirator, Jones, made after the conspiracy had terminated. Such interpretation of the record is patently incorrect. For, when the solicitor sought to offer this evidence, by the question, "Well, what, if anything, did he (Jones) say?", the defendant's attorney then and there duly interposed proper objection, and, upon the overruling thereof by the trial court, reserved exception to the ruling. The next ensuing question, "What did he say?", was a mere repitition of the same question, presumably for the purpose of proceeding with the introduction of the evidence just ruled permissible by the court (to which, exception had been just reserved, as above). Repetition of the same objection and exception to the same question would have frivolously and capriciously interrupted the orderly examination of the witness upon a point already ruled proper by the court. Such supererogation of objection and exception would have bordered upon the contemptuous and was unnecessary. We find and so hold that the record clearly presents a reviewable exception. The authority cited by applicant is not in point.
The case of Cox v. State, 240 Ala. 368, 199 So. 806, is consistent with our conclusions here that whatever is said or done by a coconspirator (there having been established by the evidence, prima facie, a conspiracy), in the furtherance of the unlawful design is admissible. When, however, its objects and purposes have been finally concluded, the conspiracy being ended, the acts and declarations of such coconspirator made thereafter, without the presence of the defendant, and not of the res gestae, are inadmissible. The declarations sought to be introduced here were of this character. The Cox case is in harmony with these views.
We think the application should be overruled.
Opinion extended and application overruled. *Page 94