Smith v. State

Full title: SMITH v. STATE

Court: Supreme Court of Alabama

Date published: May 23, 1935

230 Ala. 413 (Ala. 1935)

161 So. 538

Opinion

3 Div. 116.

May 23, 1935.

Appeal from Circuit Court, Escambia County; F. W. Hare, Judge.

John I. Smith was convicted of murder in the second degree, and he appeals.

Affirmed.

The appellant, John I. Smith, was jointly indicted with King Smith, Zell Smith, Jim Smith, Dan Smith, A. Z. Smith, and John Archie Stacy, for the murder of Horace Cain. On appellant's motion he was granted a severance, was tried and convicted of murder in the second degree, and his punishment fixed at twenty-five years' confinement in the penitentiary.

The evidence is without dispute that appellant John I. Smith, King Smith, Zell Smith, Dan Smith, and A. Z. Smith are the sons of Jim Smith, and that witness Stacy and the deceased, Horace Cain, were the sons-in-law of said Jim Smith; that about three weeks before the killing, Cain and his wife had separated because of Cain's abuse of the wife; that the wife and one of their children had been brought by the father, Jim Smith, to his home soon after the separation where she had remained; the other child was wish its father, the deceased; that bad blood or ill feeling existed between the Smiths and Cain as the result of said separation and abuse.

At the time of the killing Jim Smith, the father of Mrs. Cain, lived about one and a half miles from Canoe; the appellant John I. Smith and King Smith lived with their father, and Dan Smith's residence was located between Jim Smith's and John Smith's, a negro, where the killing occurred. A. Z. Smith was not living with the father, but was "living on the Benson farm."

Zell Smith spent the night before the killing, next morning at Dan Smith's house, but was at Jim Smith's house early in the morning before the killing. Stacy and his wife, who lived one and one-half miles from Jim Smith, spent the night at Jim Smith's house. The residence of Dan Smith was about two hundred yards from Jim Smith, and the negro's house was about one-half mile from Dan Smith.

When Cain was shot he was between the barn and the house of John Smith, and the body fell near the steps leading into the kitchen; upward of two hundred shot entered his body.

The negro's house was on the edge of a field, bordered by a woodland three-quarters of a mile in depth, and the barn was immediately back of the house next to the woodland. Bowman's Cemetery was on the opposite side of this woodland just off the highway. A settlement road led from the cemetery to John Smith's house, and a narrow lane led from near John Smith's toward Jim Smith's residence.

The killing occurred around 8 o'clock on Sunday morning.

The evidence further shows that Cain rode on horseback through the woodland along the settlement road to John Smith's house, accompanied by his brother, Comer Lee (Pal) Cain, who stopped in the woodland some distance from John Smith's to await Cain's return from his mission. There was evidence tending to show that Cain's purpose was to send a letter by or through Dan Smith to his wife. The letter was found on Cain's person after his death punctured with several shots, and was subsequently delivered to Mrs. Cain by the sheriff. When Cain arrived at John Smith's, he hitched his horse at the mule lot back of the house and sent a messenger, John Smith's boy, to Dan Smith, informing Dan that he was at the Negro's house and wished to see him.

Said John Archie Stacy was called and testified, as a witness for the state, that Dan Smith came to the residence of Jim Smith on that Sunday morning and "told Mr. (Jim) Smith that Horace Cain was over at old negro John's house; that his boy had come over there and told him he was over there, and Dan told Mr. Smith that if he wanted to kill him now was the best time to kill him and get by with it. * * * John I. Smith, King Smith and A. Z. Smith and Zell and I went over to the negro John Smith's house that morning. All of these whom I mention are brothers. We went over there in an automobile. We left the automobile at the Bowman Cemetery. * * * We walked from the place where we parked the car over to John Smith's, the negro's house. Four of us had shotguns and one had a pistol. John I. had the pistol and Zell, A. Z., King and I each had a shotgun. When we got up to John Smith's house, I saw Horace Cain there. He was standing up side of the wire fence on the right-hand side of the fence. * * * he was standing with his feet in the wire whittling on the post on the right-hand side and old negro John was on the inside. * * * We come up behind the barn through the field, so that he couldn't see us. And his horse was hitched at the post and this horse looked around. The horse was Horace Cain's, and he looked around and saw us and at that time Horace looked and stepped over the fence on the inside and walked around this way (indicating) to the house and turned just like you were going in the door right here (indicating). He did not say anything to us. We did not say anything to him. A. Z. stepped over the fence on the right-hand side of the barn and he shot this way (indicating). I mean A. Z. Smith. He shot with a single barrel shotgun. King, Zell and I shot also about the same time. * * * John I. Smith, the defendant, was standing right this side of me. He had his pistol there and it was in shooting position, but he didn't shoot. When we started shooting the dead man didn't start running nowhere. He just eased over on his face. He did not shoot at all. He didn't ever get his pistol out. He had a pistol with him. I saw it later. It was in his pocket and John I. taken (took) it out of Horace's pocket and wrapped his pocket handkerchief around the stock of it and shot it off twice in the air and snapped it once that I heard. * * * He did not raise the man up. It was in his hip pocket. When John I. shot it off twice in the air and snapped it once, he and King and old negro John raised him up. John I. placed the pistol in Horace's hand. King taken (took) hold of one arm and old negro John taken (took) hold of the other one and they raised him up and John I. placed the pistol in his hand and then they eased him back down with his head in this position. That was the last I saw. Then, John I. and King told old John to say that Dan killed him, that Dan Smith had killed Horace. Dan was not over there. They said that they would give him twenty acres of land and $40.00 in money. * * * In going over there that Sunday morning to the old negro John's house where the killing took place, Mr. Ferd McNeil was in the front yard of his house when we passed by. I saw him in the yard. I just don't know how close we were to him when we passed by, but I imagine about thirty feet. On the way over to the negro's house, I saw a red horse off to the side of the road. Nobody was on the horse, but there was a man sitting down by a log. I taken (took) it to be Pal Cain, Comer Lee Cain, a brother of the dead man. I couldn't say just how close we came to him. He was away from the road a little piece, down there towards the branch head. After the shooting, Zell and A. Z. went back to the graveyard and got the automobile, and John I. and King and myself walked down the lane back to the house. * * * I just wouldn't say positive whether we all got back to the house ahead of the automobile, or after the automobile got there or about the same time. But we went on back and I went in the house and I carried a double barrel shotgun and a single barrel shotgun and put them up in the house. I used a single barrel and I got the double barrel gun from King. When we got back I saw Dan Smith around his house."

Stacy also testified that after the separation of Cain and his wife, the appellant John I. Smith and King Smith tried to get witness to let them kill Cain at his (Stacy's) house and claim that he (Stacy) did it in self-defense; that previous to the killing Mary Cain, the wife of the deceased, wanted witness to go with her to the gin in Canoe to see the child, and John I. and King carried guns along and said that if Cain was there they were going to take him or kill him; that the killing was in 1930; that he first told one Richard Purvis about the occurrence, during the first year of Sheriff Byrne's incumbency, and went before the grand jury in March, 1934.

McNeil testified:

"At the time Horace Cain was killed I was living about a quarter of a mile just this side of the overhead bridge on the left. This overhead bridge is over the L. N. Railroad between Warbeek and Canoe. Yes, sir, in that green house around the curve there. Horace Cain was killed on Sunday. Yes, sir, I knew the Smith's car. Yes, sir, that car passed my house early that morning prior to the shooting. Well, I couldn't say who was in it; I don't know. I suppose the Smiths were in there, some of them was (were). I don't know how many. I couldn't say which ones it was. I looked up and saw that car come by. That's one way from the Smith's house out the way they get to the Bowman Cemetery. I shouldn't say that's the best road. There's not any good road. It's bad either way. Yes, sir, they followed the highway after getting to the overhead bridge. Yes, sir, the other way you would have to go through that narrow lane between my place and the Smith place. Yes, sir, that's almost impassable. No, sir, I don't know how many there were in the car. I saw the car pass. I think that Archie Stacy was in there.

"Q. And some of the other Smiths and you don't know which ones? * * * A. No, sir."

And on cross-examination: "No, sir, I didn't see John I. Smith to know him in that automobile that morning. No, sir, I didn't recognize any of the other Smiths."

Comer Lee Cain testified for the state: "I am a brother of Horace Cain, who is now dead. He died on one Sunday morning, I forget the day of the month. Yes, sir, I was with him on that Sunday morning. I got with him and we went over near the colored fellow's house. Yes, sir, that was John Smith's. That was somewhere near eight o'clock in the morning. I did not go all the way to the negro's with Horace. I stopped in a hollow about a quarter of a mile this side of the house. We were traveling on horseback. Yes, sir, each one of us had a horse. I had a red horse. Yes, sir, when I stopped there I saw John I. Smith, King Smith, A. Z. Smith and Archie Stacy pass by going toward the negro's house. They had shotguns and pistols. Yes, sir, they went in the direction of the negro's house. Yes, sir, when they passed I heard shots after that. I heard two shotguns and two pistols fired. The shotguns fired first. After the shotguns fired, about a minute, I guess, I heard the pistol shots."

Mrs. Lee testified as a witness for the state: "I know the Smith boys, John I. and King and A. Z. and Zell. Horace Cain was shot on Sunday morning. I was out in the woods looking for my calves that morning. One of my daughters was with me. Yes, sir, I was there and saw an automobile come up and parked near the Bowman Cemetery. Yes, sir, I know whose car that was. It was Mr. Jim Smith's. I don't know exactly how far Mr. Smith lives from me; about a quarter. Yes, sir, just right back of me. Yes, sir, someone passed me while I was looking for those cattle. It was Archie Stacy and John I. Smith and King and Zell and A. Z. Yes, sir, Archie Stacy and John I. Smith and A. Z. Smith and King Smith and Zell Smith. Yes, sir, some of them had something in their hands; I don't know what it was. No, sir, I don't know whether it was guns or not; because I turned my back when I seen (saw) them. When they got out they were running. As to the direction they were going, they were going right back —. Yes, sir, I know where John Smith lives. Yes, sir, they were going in that direction. At that time I was kinder in between Bowman Cemetery and John Smith's house, but not exactly in between them. I was right close to the cemetery in the little hollow right by it. Yes, sir, I am sure I saw them there that morning. I don't know exactly what time it was but it was early in the morning. Yes, sir, it was before I heard about this man being killed. No, sir, I didn't see them coming back."

The testimony of Lucille Lee, the daughter of the witness Lee, was in substance the same as that of her mother, and that what the Smith boys and Stacy had in their hands looked like guns.

C. J. Smith, a witness for the state, testified that immediately after he heard the guns fire he went by Jim Smith's house going over to John Smith's; that he didn't see any one in front of the gate, but Archie Stacy, John I. Smith, and A. Z. Smith were about thirty feet from the gate in the lane coming towards Jim Smith's house from the direction of John Smith's house, and that they had guns.

The appellant offered evidence tending to show that he was not present at the place of the killing and took no part therein; that he was at home, and his brother Dan Smith testified in his behalf that he (Dan) killed Cain, and that neither Stacy nor any other of the Smiths were present except John, the negro at whose house Cain was shot, and Dan Smith's testimony was corroborated by the testimony of John Smith. The defendant also adduced evidence going to show that Stacy's character for truth and veracity was bad, and the state, in rebuttal, offered testimony tending to sustain his character for truth.

When the state concluded its testimony in chief and rested, the defendant made a motion to exclude all the evidence adduced by the state on the grounds: First, that the evidence adduced is "irrelevant, illegal, incompetent and immaterial"; second, "that there is a fatal variance between the indictment and the proof"; third, "the state has failed to make out a prima facie case"; and, fourth, "the testimony of the accomplice has not been corroborated." The court overruled this motion and the defendant reserved an exception.

After the jury returned their verdict, the defendant filed a motion for a new trial, on grounds: First, that the verdict is contrary to the evidence; second, that the verdict rendered is contrary to law; third and fourth, newly discovered evidence. This motion was overruled, and the defendant reserved an exception.

Frank G. Horne, of Atmore, and H. C. Rankin, of Brewton, for appellant.

If any member of the jury have a reasonable doubt of the guilt of defendant from the evidence, the jury should give the benefit of doubt to defendant and not return a verdict of guilty. A charge so instructing the jury should be given. Carter v. State, 103 Ala. 93, 15 So. 893; Cunningham v. State, 117 Ala. 59, 23 So. 693. Zell Smith, a joint defendant, having been tried and acquitted, appellant was entitled to have the verdict of guilt returned against him set aside. 1 C. J. 390; 16 C. J. 143; C. J. Ann. 1933, 629; People v. Wyherk, 347 Ill. 28, 178 N.E. 890; 1 R. C. L. 153; Supp. 1 R. C. L. 50; Pierce v. State, 130 Tenn. 24, 168 S.W. 851, Ann. Cas. 1916B, 137.

A. A. Carmichael, Atty. Gen., for the State.

Brief did not reach the Reporter.

BROWN, Justice (after stating the facts).

We have limited our statement of the evidence to the salient facts and circumstances, deemed material to an understanding of the questions presented in argument.

Appellant's first and major contention is that the testimony of Stacy, a confessed accomplice, was not sufficiently corroborated to justify the submission of the case to the jury. This question is presented by the defendant's motion to exclude the evidence, and his requested affirmative charge in writing, which were by the court denied and refused. Randolph et al. v. State, 100 Ala. 139, 14 So. 792; Taylor v. State, 15 Ala. App. 72, 72 So. 557.

Whether or not there was evidence corroborating the accomplice witness, tending to connect the defendant with the commission of the offense, is a question of law; its weight and sufficiency, along with the testimony of the accomplice to show the defendant's guilt beyond a reasonable doubt, were questions for the jury. Code 1923, § 5635; Read v. State, 195 Ala. 671, 71 So. 96; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A. 14. R. 712; Lindsey v. State, 170 Ala. 80, 54 So. 516.

It is not necessary that the corroborating evidence refer to any particular statement or fact testified to by the accomplice. If it strengthens the probative criminating force of his testimony and tends to connect the defendant with the commission of the offense, it is sufficient to warrant the submission of the issue of guilt or innocence to the jury. Malachi v. State, 89 Ala. 134, 8 So. 104; Ross v. State, 74 Ala. 532; Palmer v. State, 165 Ala. 129, 51 So. 358; McDaniels v. State, 162 Ala. 25, 50 So. 324.

The testimony of the witnesses McNeil, Comer Lee Cain, Mrs. Lee, and her daughter, and C. J. Smith, corroborated the testimony of Stacy as to particular facts testified to by him, and, if believed, strengthened the probative criminating force of his testimony connecting the appellant with the commission of the offense, and justified the court in denying the motion to exclude and in refusing the affirmative charge requested by the defendant.

We have considered the several rulings of the court relating to the admission and exclusion of evidence, and find nothing in these rulings of which the appellant can justly complain. If errors intervened here, they were prejudicial to the state, not to the defendant.

Charge 3 refused to the defendant required the jury to give the benefit of a doubt in the mind of any one of the jurors to the defendant, and was properly refused.

The proposition of charge 12 was fully covered by the court's oral charge, and if this charge was not otherwise bad, its refusal does not constitute reversible error.

The propositions of charges 7, 19, 24, and 25 were fully covered by the court's oral charge and given at the instance of the defendant.

Charges 18 and 21, on principles heretofore stated, were well refused.

On the hearing of the motion for a new trial, it was shown that subsequent to the trial and conviction of the defendant, in August, 1934, Zell Smith, who was jointly indicted with appellant, was put on trial in October, and was acquitted, and the appellant now insists that the acquittal of Zell Smith is conclusive evidence of appellant's innocence and entitled him to a new trial. This contention is based on the assertion that at most John I. Smith was an accessory before the fact or aided and abetted in the commission of the offense, but did not fire the shot or shots that produced the death of Cain. This contention is based upon the rule of the common law changed by the statute, Code 1923, § 3196, abolishing the distinction between accessories before the fact and between principals in the first and second degree, and providing that "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 hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors." Ferguson v. State, 134 Ala. 63, 32 So. 760, 92 Am. St. Rep. 17; State ex rel. Attorney General v. Tally, Judge, 102 Ala. 25, 15 So. 722; Griffith v. State, 90 Ala. 583, 8 So. 812; Reg. v. Hughes (Eng.) Bell C. C. 242; 16 C. J. 143, § 155. The other grounds of the motion for a new trial have been considered, and we are clear in the conclusion that the court did not err in overruling the motion for a new trial.

The record appears free from reversible errors, and the judgment is affirmed.

Affirmed.

GARDNER, THOMAS, and KNIGHT, JJ., concur.