This court does not commit itself to the holding of the Court of Appeals to the effect that error intervened in the admission of the evidence that a pair of pants and a hat were found in the Buick car, referred to as the "death car," after its return from its death mission, nor in the admission of evidence that clothing and other equipment of Company M were missing when checked up after the homicide. 106 So. 609. One inquiry in the cause was whether the mob was composed of members of Company M. Evidence on this inquiry was material only in connection with other evidence that defendant was one of the party. This latter evidence being in, any circumstance tending to connect the men of Company M with the homicide was admissible. It is not necessary that every circumstance point directly to defendant, if in connection with all the circumstances it tended to identify him with the mob.
We do not approve the holding of the Court of Appeals that, even if Capt. Lollar was shown to be one of the coconspirators, his subsequent instructions to the company, looking to a suppression of the facts, the defendant being present, would not be admissible. As correctly held by the Court of Appeals in dealing with other rulings, efforts to conceal evidences of the crime on the part of its perpetrators was admissible. It may be said that, in the nature of the case, the commission of murder by a masked mob implies a continued conspiracy of concealment and suppression.
But we do approve the holding of the Court of Appeals that, in the absence of any evidence tending to connect Capt. Lollar with the mob, his instructions or advice to the members of the company were not admissible against defendant. Not being a member of the conspiracy, he was not a spokesman for its members by reason of the criminal relation existing between them, and his declarations could only become admissible under that other rule which admits declarations of third persons under conditions pointing so directly to accused that he is called upon to disclaim the express or implied imputation of crime — when his silence may be reasonably deemed an admission of guilt. On certiorari this court looks alone to the findings of the Court of Appeals as to the tendencies of the evidence. Upon the finding by that court that there was no sufficient evidence to connect Capt. Lollar with the conspiracy, the admission of his declarations was error, and worked probable injury to defendant.
Writ denied. *Page 4
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
On Rehearing.