Opinion
8 Div. 74.
October 6, 1970.
Appeal from the Circuit Court, Morgan County, Newton B. Powell, J.
Ike Groover, Hartselle, for appellant.
A conviction of felony cannot be had on the testimony of an accomplice, unless 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. Title 15, Section 307, Code of Alabama 1940. The distinction between an accessory before the fact and a principal, between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must thereafter be indicted, tried and punished as principals, as in the case of misdemeanors. Title 14, Section 14, Code of Alabama 1940 (Recomp. 1958). Corroboration of testimony of accessory is necessary to conviction in view of statute abolishing distinction between accessory before fact and principal. Alexander v. State, 20 Ala. App. 432, 102 So. 597. Whether there is any evidence corroborating an accomplice as a witness and connecting the accused with the commission of the offense charged, is a question of law for the court. Skumro v. State, 234 Ala. 4, 170 So. 776.
MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State.
To invoke statute providing that conviction may not be had on uncorroborated testimony of accomplice, it must clearly appear that witness was an accomplice, and if this is left in doubt or is uncertain, there is a question for jury and not for court. Title 15, Section 307, Code of Alabama 1940 (Recompiled 1958); Lowery v. State, 38 Ala. App. 505, 88 So.2d 854; Moore v. State, 15 Ala. App. 152, 72 So. 596; Kornegay v. State, 33 Ala. App. 338, 33 So.2d 405. Merely being at or near the scene of a crime even without raising hue and cry does not make a man either principal or accessory to that crime. Leonard v. State, 43 Ala. App. 454, 192 So.2d 461; Hollinger v. State, 40 Ala. App. 281, 112 So.2d 220; Davis v. State, 257 Ala. 447, 59 So.2d 592. The classic test of determining whether the witness is an accomplice is: Could he have been indicted and convicted of the offense charged, either as principal or accessory? Leonard v. State, Supra; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712.
Second degree arson: three years. Code 1940, T. 14, § 24.
I
The defendant and others first discussed getting gasoline with the purpose of pouring it on a street surface opposite a juvenile dance hall. After setting a fire the conspirators proposed, "to call the Fire Department and tell them we're burning up the place."
However, two of the band rejected this. The defendant, one of the others testified:
"A Yes, he said, 'Let's burn Finch's out', so there wasn't nobody said nothing, and then he said, who was going to help him, or something like that, and then we went on, everybody said you're a bunch of scared so and so's —
"Q This Defendant here said that?
"A So he said, he would burn it.
"Q Fairbanks said he would burn it?
"A Yes.
"Q Go ahead.
"A And Edward Garth got out with him.
"Q Wait a minute, what else was said before you got the car stopped?
"A Nothing much.
"Q Who said that?
"A Charles Fairbanks, and Edward Garth went along with him.
"Q They had got out and gone to burn it?
"A Yes.
"Q How far away was you all when when they got out to go burn it?
"A A block.
"Q A block or more?
"A Yes.
"Q Did you see them when they got out?
"A I seen them when they got out of the car.
"Q Did you unlock the trunk?
"A Yes.
"Q Did you see when they got the can out?
"A I didn't see who got the gas because we was inside, it was dark, and you could see the figures moving in the dark.
"Q Which one had it then?
"A As I said, I couldn't tell, because it was dark and they was moving away fom the car."
II
Here appellant claims error only in the trial court's not excluding (on motion) the State's proof for failure to corroborate the testimony of those who rode in the car with Fairbanks and Garth. Code 1940, T. 15, § 307. It might be arguable that the driver of the car by dropping Fairbanks and Garth off at the scene and later taking them away associated with them in the arson. But there were others who were completely passive. Pugh v. State, 42 Ala. App. 499, 169 So.2d 27.
In the instant case, whatever was the criminal object of setting a fire in a street, the paving material of which was not shown to be flammable, the object of burning Finch's store was a new undertaking.
Differentiation of acts as being or not being beyond the scope of the original common purpose is one of degree. Foster, Crown Law, 369 says the actor will stand single from the one soliciting him if the principal wilfully and knowingly commits a felony of another kind. The accessory before the fact will not then be involved in the principal's guilt.
Hence, in this case it cannot be a pure question of law that the original street-burning confederates remained participants in Fairbank's and Garth's burning of Finch's store.
In Childs v. State, 43 Ala. App. 529, 194 So.2d 861, Price, P. J., wrote:
"The witness Witherspoon is an admitted participant in the burglary, and under the undisputed evidence was an accomplice. The fact that the witnesses Benny Jones and Henry Albert Stueckler were purchasers of the stolen property and indicted for buying, receiving or concealing it, does not make them accomplices as a matter of law. Dye v. State, 25 Ala. App. 138, 142 So. 111; Sweeney v. State, 25 Ala. App. 220, 143 So. 586. 'The burden of proving the witness to be an accomplice is, of course, upon the party alleging it for the purpose of invoking the rule, namely upon the defendant — 3 Wigmore on Evidence, Sec. 2060(c). Darden v. State, 12 Ala. App. 165, 68 So. 550.' Horn v. State, 15 Ala. App. 213, 72 So. 763. (Except, of course, where the state's evidence undisputedly makes the witness an accomplice) There was no evidence tending to show that Jones and Stueckler were accomplices."
If there is (as here) a dispute in the evidence as to complicity, then the jury has a question of fact before it. In this case the court below charged the jury of the need for corroboration and also defined an accomplice. No exception was taken, hence, this direction became the law of the case.
We have reviewed the entire record under Code 1940, T. 15, § 389 and conclude that the judgment below is due to be
Affirmed.