I concur in the reversal of this case, but cannot concur in so much of the opinion as holds that the exhibition of the ax, and accusation by Mary Frances to Odell Jackson, in the presence of this defendant, who made no denial or response, were admissible in evidence. It was not a declaration or admission by silence of said Jackson in pursuance of a conspiracy, but related to an event after the commission of the offense, and was in no sense an accusation against this defendant, which called for a denial, and, in my opinion, should have been excluded upon proper objection and exception by this defendant, notwithstanding it was admissible upon the trial of Odell Jackson.
The case of Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am.Rep. 133, cited in the opinion of the majority, involved an accusation by one of the defendants to all of the others, "that John and these boys got him to do it." This was, in effect, an accusation as to all of them, and called for a denial or repudiation.
Here there was no charge or accusation against this defendant which called for a denial.
Justices SAYRE and MILLER concur in the foregoing views.