239 So.2d 907
5 Div. 34.Court of Criminal Appeals of Alabama.
October 6, 1970.
Appeal from the Circuit Court, Macon County, L. J. Tyner, J.
Russell, Raymon Russell, Tuskegee, for appellant.
Page 236
It is error to admit in evidence against the defendant a statement made by a third party outside of the presence of the defendant. Brewer v. State, 23 Ala. App. 116, 121 So. 689; Mays v. State, 218 Ala. 656, 120 So. 163.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
PRICE, Presiding Judge.
Cecil Baker appeals from a conviction of the offense of assault and battery, with a sentence to hard labor for a term of four months.
The evidence for the State tends to show that late in the afternoon of October 8, 1969, the defendant committed an assault and battery upon the person of Stanley Sherrill, a game warden, by shoving him. Defendant was struck in the back of the head with the officer’s pistol, necessitating seven stitches.
The question of the sufficiency of the evidence to support the verdict is not presented for our review. The general affirmative charge was requested but is not endorsed “refused” and signed by the trial judge. Therefore, it cannot be considered on appeal. Kiker v. State, 233 Ala. 448, 172 So. 290; Turner v. State, 266 Ala. 250, 96 So.2d 303; Strickland v. State, 269 Ala. 573, 114 So.2d 407.
Mr. Sherill, the conservation officer, testified he had confiscated birds from Bernie Robinson and a boy named Spratling and charged them before Justice of the Peace Donald Scott “with killing over the limit.”
Later that afternoon the defendant appeared in front of the office of the Justice of the Peace where the officer was standing and said; “I want to talk about them birds.” The difficulty then ensued.
The defendant was not shown to be connected with the killing of the birds.
Evidence of conversations and transactions between third persons, not occurring in defendant’s presence, which cannot be considered within the res gestae of the offense charged in the indictment, was admitted in evidence over defendant’s objections. For this error the judgment is due to be reversed and the cause remanded.
Reversed and remanded.