Clark v. State

• Decision Date: 13 April 1940
• Docket Number: 4 Div. 61.
• Citation: 197 So. 23,240 Ala. 65
• Parties: CLARK v. STATE.
• Court: Alabama Supreme Court

197 So. 23

240 Ala. 65

CLARK v. STATE.

4 Div. 61.

Supreme Court of Alabama

April 13, 1940

Rehearing Denied June 6, 1940.

Further Rehearing Denied June 27, 1940.

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

Henry Clark was convicted of murder in the first degree, and he appeals.

Affirmed.

Where grounds of defendant's plea and motion to quash indictment for first-degree murder went to sufficiency of evidence before grand jury which returned indictment sustaining a demurrer to the plea and motion was proper.

State's witness Tommie Lee Boykin testified that he was in jail at the time Jeener Lee Teal and Henry Clark were put in jail on a charge of having killed a man; that witness was kept in the hall, Clark was kept in a cell over by the window on the right side, and Teal was kept in the other cell; that the hall runs from one of those cells to the other; that "Mr. Clark told me to go and tell Mr. Teal to tell a lie and stick to it and not to be scared."

Defendant's witness Tommie Decree testified that he was in jail when Clark was brought in, and remembered a little boy named Thomas Lee Boykin who was in the jail; that the boy, Boykin was in the hall and witness was in a cell facing Clark's cell; that witness could hear what was said back and forth from one cell to the other; that "if Mr. Clark ever gave any message to Thomas Lee Boykin, I didn't know anything about it."

The defendant propounded this question to the witness: "You were in position where you would have known it if he had given any message to him, were you not?" The State's objection to this question was sustained, and defendant reserved an exception.

Dan Creel, a witness for the State, testified that he knew Henry Clark and Jeener Lee Teal, and that he saw them together Saturday afternoon prior to the Monday that the body of Ed Brown was found, walking across the bridge at Blue Springs. On cross-examination witness testified that Clark and Teal "got about 20 feet to me after they got off at that little old piece of car they was on. They was on a little car when they run by me there. My little boy said it was a model T; it was one Henry had been driving for years. * * When I first saw those boys they were on a car. * * * They come right around that garage * * * by where I was and turned right around in there and as quick as they could get off they come back into the road and went east. They left the car there. * * * When I last saw them they were out at the bridge. * * * As to that car and whether I knew it and had known it in Henry's possession and Henry's ownership for a number of years--well, that's what they called it. I've never noticed a car enough to swear to the make of it. * * * I didn't know that at that time, and for a number of weeks prior to that, that car had been without tires and was laid up, utterly useless. * * * I didn't know of a certainty that that was the car Henry had been owning for a year or two back before that. I wouldn't be certain that it was the Henry Clark car that they were in; it was just a little old car that looked like it."

Defendant then asked the witness the question quoted in the opinion.

Grounds 38-40 of the defendant's motion for a new trial are, in substance, that John Pitt Williams, Sheriff, Marshall Williams and Stanley Baker, Deputy Sheriffs, who were material witnesses for the State, and as such testified to "seriously damaging facts against defendant pending his trial, which lasted three days and nights, and thereafter until late into the day on the immediately following Sunday was (were) with and in charge of the jury trying the case at meal hours and at night, both while they were and while they were not in the court room, and in both places in the absence of the trial judge, in violation of the defendant's rights in the case."

M. Sollie, of Ozark, M. I. Jackson, of Clayton, and Robert Bennett, of Ozark, for appellant.

Thos. S. Lawson, Atty.Gen., and Prime F. Osborn, Asst.Atty.Gen., for the State.

THOMAS Justice.

The indictment, trial, conviction, verdict and judgment were for murder in the first degree and the sentence was fixed at life imprisonment.

The state introduced testimony to show that defendant Clark and one Teal had conspired to commit the crime for which the former was convicted; that the two men were together the day preceding the night of the commission of the crime; that there were two sets of human tracks leading from the scene of the crime which corresponded with shoes worn by Clark and Teal.

It is established in this jurisdiction that acts, conduct and declarations of a co-conspirator after consummation of the act and res gestæ of the conspiracy are irrelevant. The Court charged the jury not to consider the later statements by Teal uttered without the presence and hearing of defendant Clark. This action of the court was without reversible error. Alabama Digest, Criminal Law, + 1169 (2), p. 289, et seq.; Wharton's Criminal Evidence,§§ 723, 724, p. 1216.

With this understanding of the nature of our well-established rules of evidence touching such confession of a co-conspirator or an accomplice, we are brought to a consideration of the several rulings of the trial court as to the mental status or sanity, vel non, of the witness and accomplice Teal. It will be remembered that Teal's statements were not given to the jury as mere confessions of Teal, but merely as the testimony of the defendant by his silence in the face of inculpatory statements in his presence and hearing and under circumstances calling upon him to speak in his own defense in the denial of such charge or admission. Teal's statements in defendant's hearing and his silence under the circumstances show that Teal's first confession was competent evidence against Clark, the other conspirator. Milazzo v. State, 238 Ala. 241, 189 So. 907; Sam Underwood v. State, Ala.Sup., 193 So. 155; Lowman v. State, 161 Ala. 47, 50 So. 43; National Park Bank v. Louisville & N. R. Co., 199 Ala. 192, 74 So. 69; 6 Alabama Digest, Criminal Law, + 516, p. 424.

The rule as to inadmissibility of such evidence, on two decisions from this court, is stated in Wharton's Criminal Evidence, Vol. 2, § 723, p. 1216, as follows: "The general rule regarding the inadmissibility of the confessions and admissions of guilt of co-conspirators and codefendants is usually stated by the courts with the proviso that such statements are inadmissible when made in the absence of the defendant. [ Patterson v. State, 202 Ala. 65, 79 So. 459.] This is for the reason that a confession or admission of a co-conspirator or codefendant may be admissible if made in the presence of the accused and assented to by him, either expressly, impliedly, or tacitly by silence or conduct. [ Bachelor v. State, 216 Ala. 356, 113 So. 67.] In such case then, the confession or admission of the co-conspirator or codefendant loses its inherent nature and becomes evidence which is merely incidental and coupled to the statement or conduct of the defendant in affirming and assenting to the truth of the statement made. It is really, then, not the confession or admission of a co-conspirator or codefendant which is admissible against the defendant in this situation, but his statements, action, or reaction thereto, and primarily a confession or admission of the defendant is had by assent or adoption. Accordingly, such confessions or admissions which become admissible because of the words or behavior of the defendant are to be viewed in this aspect, and are so treated in this work in the chapter dealing with the confessions and admissions of the accused." [ Chapter VIII, p. 1081; also p. 1089, § 656.] [Brackets supplied.]

It is likewise well-established by authorities in this and other jurisdictions that: "It may be stated as a general rule that, when a statement is made in the presence and hearing of an accused, incriminating in character, and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible on a criminal trial, as evidence of his acquiescence in its truth. A statement so made, of itself, would be objectionable as hearsay testimony, being a statement made at some time other than at a present trial, offered to prove the truth of the matter therein asserted, and based entirely on the credibility of a declarer not then before the court. However, as in the case of admissions generally, the statements herein considered are not offered as evidence of their truth merely because they were uttered; they are secondary in nature and are accepted in evidence as untainted by the hearsay stigma merely because they are a necessary predicate to the showing of the substantive evidence, the reaction of the accused thereto. The crystallization of the experience of men shows it to be contrary to their nature and habits to permit statements, tending to connect them with actions for which they may suffer punishment, to be made in their presence without objection or denial by them, unless they are repressed by the fact that the statement is true. Consequently, silence under accusation is some evidence from which the jury may infer that the accused acquiesced in the statement and admitted its truth. But silence or failure to deny, of itself, unaccompanied by the statement in the face of which the accused remained silent or which he failed to deny, cannot well be testified to so as to convey meaning. The witness might testify that an incriminating statement was made without stating what it consisted of, but such testimony would be objectionable as a mere conclusion. * * * Spencer v. State (1852) 20 Ala. 24; Martin v. State (1865) 39 Ala. 523; Matthews v. State (1876) 55 Ala. 187, 28 Am.Rep. 698; Williams v....