Sheppard v. State , 172 Ala. 363 ( 1911 )

SIMPSON, J.

The appellant was indicted, with Emma Smith, Wiley Young, and William McCary, for the murder of Cleve Houlditch. Emma Smith pleaded guilty, appellant and Wiley Young were convicted of murder in the first degree, and William McCary was acquitted. The theory of the state is that a conspiracy existed among all of the defendants to murder said Houlditch. All of the defendants had been at a supper, and left at the same time. The deceased was found, with his throat cut, his skull crushed, and other severe wounds in the side, either of several beingj according to the opinion of physicians, sufficient to have produced death.

There was no error in overruling the objection to the testimony of Buck Davis that, as the defendants were all going out the gate, Wiley Young, who was a little behind the others, said, “I got to go, too; I am with them; I am onto him; I see him; I am onto him.” It was for the jury to say, under all the evidence, whether the remark referred to-the deceased. A conspiracy may he proven by circumstantial evidence, and this remark, besides tending to show the animus of Wiley Young (who is not appealing), was a circumstance to be considered by the jury as to the common design.— Martin v. State, 89 Ala. 115, 119; 8 South. 23, 18 Am. St. Rep. 91.

Even if this defendant conceived that the remark furnished no evidence against her, her proper course would have been to request the court to limit the application of the evidence. — Williams v. State, 81 Ala. 1, 10, 1 South. 179, 60 Am. Rep. 133; Ponder v. Cheeves, 101 Ala. 307, 311, 16 South. 115.

At the close of the state’s evidence the defendants requested the court to give the general charge as to William McCary, which was refused; the court saying, “We won’t try these cases piecemeal.” There was no error in this. The court could not be called upon to give a charge until all of the evidence for both the state and the defendants was in.

The defendant contends that the evidence showed that Will McCary did not join in the conspiracy, and that, if the charge had been given, she could have used McCary as a witness in her behalf. She could have used him without the charge, and he could have protected himself by refusing to answer any question tending to criminate himself.

There was no error in the refusal to give charges 1 and 2, each being the general charge as to this defendant, nor in the refusal to give the third charge, as there was evidence tending to show that this defendant was in the conspiracy, and was actively aiding Emma Smith, who, the evidence tended to show, inflicted at least one of the deadly wounds.

There was no error in refusing to give charge 4. Besides the fact that it charges that this defendant could not he found guilty unless the jury found that she did not participate in the killing, if she was in the conspiracy and her co-conspirators actually did the killing, she would he guilty. — Williams et al. v. State, 81 Ala. 1, 5, 10, 11, 1 South. 179, 60 Am. Rep. 133; Martin v. State, supra; Ex parte John Bonner, 100 Ala. 114, 119, 14 South. 648; Sankey v. State, 128 Ala. 51, 54, 29 South. 578.

There was no error in the refusal to give charge 5. It charges that this defendant could not be found guilty, “unless said attack was made in pursuance of the common purpose of the other defendants, and that she did not participate in the killing.” In other words, they could not find her guilty unless they found that she was not guilty.

There was no error in the refusal to give charge 6. If this defendant entered into the conspiracy to murder the deceased, Avhich resulted in the accomplishment of its design, she could not relieve herself of guilt by abandoning the actual attack after taking part in its inception. — Authorities supra.

The matter of allowing the attorney assisting the solicitor to close the argument, notwithstanding the defendant’s attorney declined to make an argument was within the discretion of the court, and is not reversible error. — M. & M. Ry. Co. v. Yeates, 67 Ala. 164.

The judgment of the court is affirmed.

Affirmed.

Doavdell, C. J., and McClellan and Mayfield, JJ., concur.