Slayton v. State

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The defendant and his wife were lying in their bed, in an upper room of their house in Birmingham, on a night when there was no moon, with the lights all out and the room perfectly dark, when a negro by the name of Joe Percy Bragg went into the house through a rear screen door, went up the stairs to a hallway and through a doorway entering into the room where defendant and his wife were sleeping, fired two shots from a pistol, one of which struck defendant's wife in the head near the eye and the other in her breast. The wife made an outcry and fell or jumped across defendant, who jumped up and gave an alarm. In about five minutes other parties came in and an investigation followed.

The negro, Bragg, was arrested and placed in jail. He knew both defendant and his wife and was familiar with the premises, having worked around the house doing odd jobs both for defendant and his wife. When Bragg was first arrested, he made a confession to Officer Giles in which he stated that he did not intend to hurt Mrs. Slayton (defendant's wife); that he went out there to kill Mr. Slayton (defendant), because he hated him. Afterwards Bragg, made another statement giving in detail his movements on the night of the shooting and in this last statement he stated that defendant had instigated the crime in order to get rid of his wife, because she had been "giving me the devil about running around." Bragg also stated that defendant threatened him if he did not "bump" his wife off and that if and when he did, he would take him out of Birmingham and to New Mexico as his chauffeur. He also said that defendant fixed the time at which the crime was to be committed and told him that he, defendant, would be lying on the left-hand side of the bed, with one foot out from under the cover. Bragg further testified that defendant on the Sunday before the crime paid him three $10 bills and on Friday before, $18, of which last he had borrowed $10 from a grocery man by the name of Plan.

The story told by Bragg is weird, unnatural, and is not easily understandable, and is the statement of an acknowledged accomplice, which under our statute, changing the common-law rule, must be corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient. Code 1923, § 5635.

Whether there is sufficient corroboration to admit a consideration of the testimony of Bragg is a question of law to be determined by the court, then the weight and sufficiency of such evidence is for the jury, and if they are convinced of its truth beyond a reasonable doubt, they may act upon it and convict. Smith v. State, 230 Ala. 413, 161 So. 538.

The only motive for Bragg to have committed the crime disclosed by the testimony of Bragg himself was the reward claimed to have been paid by defendant and the hope of a trip to New Mexico and the hope of future employment as a chauffeur. So far as a motive is concerned, it does not affect Bragg in any prosecution against him except as a matter of evidence. But it is a material fact, which, if corroborated by evidence tending to connect defendant with the instigation of the crime, would tend to corroborate Bragg's testimony to that extent.

Under our decisions and the construction placed upon section 5635, supra, corroboration means to strengthen, not necessarily the proof of any particular fact to which an accomplice has testified, but the probative, criminating force of his testimony. Bradley v. State, 19 Ala. App. 578, 99 So. 321.

In the case of Cobb v. State, 20 Ala. App. 3, 100 So. 463,464, this court said: "Wilson [the accomplice and party hired to burn a storehouse] testified that defendant employed him, at the price of $50, to burn the store, telling witness to meet him * * * behind the buildings on the night of the fire. When the two met according to agreement, a little after 12 o'clock, defendant told witness he was going back to the house and would come back in his car and unlock the store and gas tank and 'leave a bucket setting there.' Defendant also said he would come without lights. Witness then testified:

" 'In a little bit the car come down like he said it was coming drove up there to the store over there. The car didn't have any lights on it as it come down. * * * It stopped out near the gas tank in front of the store. I know it was done the way he said he would do. * * * The gas tank was unlocked and the door was unlocked and a bucket sitting there. I saw somebody get out.'

"In connection with the fact that defendant was one of the active managers of the store and had access thereto, the testimony of J. A. Lewis, that 'Around midnight, just before I started home, there was a car drove up in front of Cobb Cobb's store. There was a person in that car. * * * I think it was a Dodge car. * * * I noticed only the lights were out when it drove up, and it went away with the lights out. When the person got out there, he stopped at the tank, or made a racket at the tank like he was filling the car and left the car sitting at the tank and went in the store on the further side, and stayed in the store 10 or 15 minutes, and come out and got in the car and drove off with the lights off until he got about even with the Key place and turned them on' — was sufficient corroboration of the testimony of the witness Wilson to authorize its submission to the jury."

To the same import are the decisions in Horn v. State,15 Ala. App. 213, 72 So. 768; Segars v. State, 19 Ala. App. 407,97 So. 747; Harris v. State, 21 Ala. App. 67, 105 So. 389.

This corroborative evidence may be by the proof of circumstances tending to prove the truth of material features of the testimony of the accomplice and is not confined, in whole or in part, to what is termed positive evidence. Newsum v. State, 10 Ala. App. 124, 65 So. 87.

As preliminary to the consideration of the testimony of an accomplice, the jury is required to believe or find beyond a reasonable doubt that the evidence of corroboration is true, and that it tends to connect defendant with the commission of the crime charged. After reaching such conclusion beyond a reasonable doubt, they may then go further and consider the whole testimony and convict if they find the defendant guilty beyond a reasonable doubt. Cobb v. State, 20 Ala. App. 3,100 So. 463, certiorari denied 211 Ala. 320, 100 So. 466.

It is the law that motive alone on the part of defendant to commit the crime with which he is charged is not sufficient corroboration. But motive is a material, although not a necessary, inquiry in every criminal prosecution, and when coupled with other facts tending to corroborate the testimony of the accomplice becomes very important in cases similar to the one at bar.

Assuming that the liaison between defendant and Billie Teachworth, and defendant's expressed infatuation for her, furnishes evidence from which may be inferred a motive on the part of defendant for the crime charged, motive, even when proven beyond a reasonable doubt, is not sufficient corroboration to authorize the conviction on the otherwise uncorroborated testimony of an accomplice. People v. Becker,210 N.Y. 274, 104 N.E. 396; Vails v. State, 59 Tex. Cr.R. 340,128 S.W. 1117.

There are some facts and circumstances corroboratory of Bragg's testimony that he was the person who committed the crime, but this is not sufficient to support a conviction in this case. The facts tending to connect this defendant with the instigation of the crime must be independent of the testimony of Bragg, the accomplice. Lotz v. State, 23 Ala. App. 496,129 So. 305.

Having the foregoing rules in mind, and eliminating, then, the motive as a point of sufficient corroboration, and laying aside, for the time being, the testimony of Bragg, we do not find any testimony in this record tending to connect this defendant with the instigation of the crime charged, as required by the statute; in the absence of which, the testimony of the accomplice cannot be considered.

However strong may be our inclination to analyze the testimony of Bragg (the accomplice), we refrain from doing so, for the very good reason that, under the foregoing, his evidence should not have been submitted to the jury for its consideration.

The evidence tending to prove the illicit relations between defendant and the Teachworth girl together with the letters written by defendant to her, were all admissible on the question of motive.

The court, in charging the jury as to the constituent parts of murder, instructed them as follows: "Murder in the first degree is the killing by one human being of another being, deliberately, premeditatedly and with malice aforethought, etc. * * * Murder in the second degree is defined just as murder in the first degree, with the exception that deliberation and premeditation need not be present, etc." In this charge, the court fell into error. It is not every homicide committed deliberately, premeditatedly, and with malice that is murder. The homicide must, in addition, have been done unlawfully. Hornsby v. State, 16 Ala. App. 89, 75 So. 637; 29 Corpus Juris, 1083, § 59, note 39. The definition as given by the court may have been an inadvertence, but nonetheless it was error. However, it was such an error, as under the facts in this case, could not have affected the substantial rights of defendant.

For the error indicated in the foregoing opinion, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

On Rehearing. The state on application for rehearing insists that the fact that defendant on Wednesday night, after his wife was shot by the negro, Bragg, at 1 a.m. Saturday morning, went to Arkansas to see the Teachworth girl, where he had a conversation with her for 30 minutes about 2:30 a. m. Thursday, in which conversation, the Teachworth girl asked defendant to bring her back to Birmingham and he refused, saying: "No he didn't want me to come back here, it was a disgrace to come back here, it would just cause embarrassment." And, further: "He did not tell me what to tell them (the police) in case they did come out there. He said they might come out there and if I didn't want to come back not to come back. He said to tell them nothing. Of course, I didn't know anything to tell," is sufficient corroboration of the testimony of Bragg, the accomplice, upon which to base a conviction. Our own case of Crumbley v. State, 26 Ala. App. 24, 152 So. 55, is cited to sustain this contention. The Crumbley Case, supra, states the law of that case under a state of facts, which could not be reconciled consistent with defendant's innocence, and which pointed strongly to a consciousness of guilt on the part of defendant, of the crime with which he was charged. In the instant case, the visit to the Teachworth girl on Wednesday after the crime committed on Friday night before and after defendant had been investigated and discharged by the authorities, being but a circumstance tending to prove an intimacy between her and defendant, could be reconciled consistent with the entire innocence of defendant of the crime with which he was afterwards charged. Where this is so, it is too well settled to admit of argument or to need the citation of authorities, it becomes the duty of the court and jury in a criminal case to so reconcile the evidence and to hold the defendant blameless. Tatum v. State, 20 Ala. App. 24,100 So. 569; Hand v. State, 26 Ala. App. 317, 159 So. 275; Overby v. State, 24 Ala. App. 254, 133 So. 915.

The corroboration necessary to support the testimony of an accomplice must be of some fact tending to prove the guilt of the accused, which will strengthen or make stronger the probative criminating force of the testimony and is not sufficient where it is equivocal or uncertain in its character. It must be such that legitimately tends to connect the defendant with the crime and of a material nature. 2 Wharton's Criminal Evidence, § 747; Roath v. State, 185 Ark. 1039,50 S.W.(2d) 985. Such corroborative evidence must tend to connect the defendant with the commission of the crime charged; it must be of a substantive character and must be inconsistent with the innocence of the accused. People v. Kempley, 205 Cal. 441,271 P. 478; State. v. Jones, 95 Mont. 317, 26 P.2d 341, 343; State v. Laris, 78 Utah, 183, 2 P.(2d) 243, 246. In the Jones Case, supra, it was said: "Where the facts and circumstances relied upon for corroboration are as consistent with innocence as with guilt, a conviction on the testimony of an alleged accomplice must be set aside." And in the Laris Case, supra, after quoting the statute similar to ours, the Court said: "It must in and of itself tend to implicate and connect the accused with the commission of the crime charged, and not be consistent with his innocence." After reviewing a large number of cases, Mr. Wharton in his work on Criminal Evidence, vol. 2, par. 752, concludes: "The proper test in determining whether there has been sufficient corroboration of the testimony of an accomplice, according to statutory requirements, is first to eliminate the evidence of the accomplice, and then, if upon examination of all the other evidence there is sufficient inculpatory evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration." Otherwise, it follows there would not be. It is also held on good authority that corroboration that merely raises a suspicion of guilt is not sufficient. 2 Wharton's Criminal Evidence, par. 753.

The fact that defendant was having illicit relations with the Teachworth girl, while he was living with his wife and family, might quite naturally cause him to want her to stay away from Birmingham at a time when her presence there might bring to the wife knowledge of the relationship, and, as he said, to his embarrassment and disgrace, but it does not furnish substantive evidence of an assault to murder by this defendant on the wife.

The opinion is extended, and the application is overruled.