Anthony v. State

• Decision Date: 24 March 1942
• Docket Number: 6 Div. 707.
• Citation: 30 Ala.App. 425,7 So.2d 513
• Parties: ANTHONY v. STATE.
• Court: Alabama Court of Appeals

7 So.2d 513

30 Ala.App. 425

ANTHONY v. STATE.

6 Div. 707.

Alabama Court of Appeals

March 24, 1942

Rehearing Denied April 7, 1942.

Appeal from Circuit Court, Jefferson County Robt. J. Wheeler, Judge.

Defendant reserved an exception to the following portion of the oral charge.

"There is some evidence here on behalf of the State which tended to prove that there was a conspiracy between the defendant and Dick Williams to burglarize the premises referred to in the indictment. I say there is some evidence which tended to prove that. Whether or not it did prove a conspiracy between Williams and the defendant to burglarize this place is for the jury's consideration; that is left to your sound discretion and judgment as the jury trying this case. But I say there is some evidence tending to prove that there was a conspiracy between these two parties, and that makes it necessary for me to charge you on the law of conspiracy. * * * "

Morel Montgomery, of Birmingham, for appellant.

Thos S. Lawson, Atty. Gen., and John J. Haynes, Asst. Atty. Gen for the State.

BRICKEN, Presiding Judge.

From a judgment of conviction for the offense of burglary, this appeal was taken.

The indictment upon which the trial was had, in the lower court is in words and figures, as follows:

"The State of Alabama, Jefferson County. Circuit Court of Tenth Judicial Circuit. July Term, 1938

"The Grand Jury of said county charge that, before the finding of this indictment, Sam Anthony, with intent to steal, broke into and entered a building, the property of Sloss-sheffield Steel & Iron Co., a corporation in which goods, merchandise or money, things of value, were kept for use sale or deposit, against the peace and dignity of the State of Alabama."

The evidence in this case, as shown by the record, is entirely circumstantial, and where this is true our appellate courts have definitely announced certain and specific rules which must govern. These rules have been adhered to for many years, and must prevail in every criminal case where the prosecution is rested upon such evidence. We here quote with our continued approval some of the salient rules here applicable.

"In order to warrant a conviction on circumstantial evidence it is necessary to prove each circumstantial fact beyond a reasonable doubt; circumstantial evidence from which an inference of their existence may be drawn by the jury is not sufficient; one presumption of fact cannot be based upon another. Vernon v. United States, 8 Cir., 146 F. 121; State v. Lackland, 136 Mo. 26, 37 S.W. 812.

"Where circumstantial evidence consists of a number of connected and interdependent facts and circumstances, it is like a chain which is no stronger than its weakest link; if any link is missing or broken the continuity of the chain is destroyed and its strength wholly fails. 16 C.J. 765 (1569)d.

"The evidence in this case is entirely circumstantial; where this is the case, and fairly permits an inference consistent with defendant's innocence, it will not support a conviction. Way v. State, 155 Ala. 52, 46 So. 273.

"The general rule applicable to this class of cases is thus stated: 'The test of the sufficiency of circumstantial evidence is, not whether it produces as full conviction as the positive testimony of a single credible witness, but whether it excludes from the minds of the jury every reasonable doubt of the defendant's guilt.' Matthews v. State, 55 Ala. 65; Mickle v. State, 27 Ala. 20; Faulk v. State, 52 Ala. 415."

The foregoing rules, and others of like import, have been enunciated in innumerable other decisions, and opinions, of the two appellate courts of this State. But we deem it unnecessary to reiterate, or quote further, in this connection; as those above stated are sufficiently full and comprehensive, in view of what we shall say in this opinion.

Applying, as we must, the rules as announced, to the facts adduced upon the trial below, we are of the opinion there is no phase of this case upon which the verdict of the jury, and the consequent judgment of conviction from which this appeal was taken, could, or should, be rested. The trial below was replete with error, and the court fell into reversible error in refusing to grant defendant's motion to exclude the evidence, which motion was promptly made at the conclusion of the State's case.

From the record, we can readily understand the difficulty with which the State was confronted in its effort to make out the case as charged in the indictment upon the meagre facts at hand. And in this connection, the writer is clear to the conclusion that the excellent officers who tried to work up the case, and gave their testimony, should be commended for their untiring efforts and manifest efficiency in this undertaking. It is the law, however, as stated by the Supreme Court, in the case of Patterson v. State, 202 Ala. 65, 68, 79 So. 459, 462:

"The guilty, as well as the innocent, have a right to be tried in accordance with the law of the land. The innocent ought not to be punished, and the law does not intend or provide that they shall be punished; and as to the guilty, the law provides that such shall not be punished except in the mode and manner provided by the law."

It is also apparent that the earnest and fair trial judge, was confronted by innumerable difficult questions to rule upon, throughout the entire trial. This was clearly manifest by the number of qualified rulings he was called upon to make wherein the assurance was given that the doubtful testimony insisted upon by the State "would be connected up," upon the strength of which assurance the court allowed the testimony to be introduced over the strenuous and insistent objections of the defendant. It is apparent from the record, that in numerous instances, this doubtful testimony was never in any manner connected up in line with the assurance given the court. By this means there was permitted to remain before the jury for its consideration much testimony based upon surmise, conjecture, opinions and illegal conclusions of the several witnesses, and upon such testimony a conviction for crime may not be rested, or had.

As will be seen, the indictment alleges that the building burglarized was the property of the Sloss-Sheffield Steel & Iron Co., a corporation. Upon the trial no...