Opinion
3 Div. 41.
December 15, 1970.
Appeal from the Circuit Court, Escambia County, Douglas S. Webb, J.
Wm. Roy Stokes, Brewton, for appellant.
All evidence in criminal cases must be carefully scrutinized for possibility of prejudice. Beatty v. U.S., 377 F.2d 181, reversed 389 U.S. 45, 88 S.Ct. 234, 19 L.Ed.2d 48. Test of admissibility in criminal cases is relevancy and materiality. Supra.
MacDonald Gallion, Atty. Gen., and W. Mark Anderson, III, Sp. Asst. Atty. Gen., for the State.
The jury is to determine whether community of purpose existed, and the extent of it, from the conduct of the parties and all the testimony in the case. Stokley v. State, 254 Ala. 534, 49 So.2d 284. One charged in an indictment with having been the actual perpetrator of a crime can be convicted under that indictment on proof of a conspiracy or that he aided or abetted in the commission of the crime. Stokley v. State, 254 Ala. 534, 49 So.2d 284.
Jackie Ray Ellis stands convicted of murder in the first degree, with a sentence to life imprisonment.
This is a companion case to that of Youngblood v. State, 45 Ala. App. 580, 233 So.2d 520. Ellis, Youngblood and the victim, Frank Felder were prison inmates when the killing occurred.
An exception was reserved to the court's oral charge as to conspiracy. The charge is substantially the same as the court's oral charge in the Youngblood case, supra.
The circumstances of the killing are set out in Youngblood, supra. The tendencies of the State's testimony are that appellant and Youngblood stabbed the deceased.
Defendant's evidence tended to show he was not present when the killing occurred, but that Glen Dickinson, also killed, was the person who murdered deceased.
The reasonable tendencies of the evidence justified the court's instruction to the jury, which was a correct statement of the law of conspiracy. Youngblood v. State, supra and cases there cited.
James L. Brown testified that the day before he took the stand as a witness defendant said to him that "if I witnessed against him he'd kill me." Allowing this testimony over objection was not error. It evidenced an attempt on the part of defendant to suppress testimony. State ex rel. ex parte Attorney General, 209 Ala. 5, 96 So. 605. It was not due to be rejected because it proves another offense. Sandlin v. State, 25 Ala. App. 311, 146 So. 82.
The judgment is due to be and hereby is affirmed.
Affirmed.
ALMON, J., not sitting.