Aylward v. State

• Decision Date: 19 May 1927
• Docket Number: 4 Div. 322
• Citation: 113 So. 22,216 Ala. 218
• Parties: AYLWARD v. STATE.
• Court: Alabama Supreme Court

113 So. 22

216 Ala. 218

AYLWARD v. STATE.

4 Div. 322

Supreme Court of Alabama

May 19, 1927

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Annie C. Aylward was convicted of murder in the second degree, and she appeals. Reversed and remanded.

Mulkey & Mulkey, of Geneva, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

SAYRE J.

Defendant (appellant) was jointly indicted with Westfall Aylward, her son, for the murder of Buford Austin. A severance having been ordered, the court proceeded to try this defendant alone with result that the jury returned a verdict of guilty of murder in the second degree and sentence was pronounced accordingly.

Deceased 17 years of age, and three companions of about the same age were standing in front of the Methodist Church at Black engaged in conversation in an ordinary tone. The time was about 9 o'clock p.m. The night was clear, but moonless. Defendant, 58 years of age, lived with her son and codefendant, Westfall, 24 years of age in a dwelling something more than 200 feet east of the church. The intervening space was open and free of obstructions save the wire fence on two sides of defendant's intervening cow pasture. Three shots in quick succession were heard; a bullet passed through the neck of deceased inflicting a mortal wound of which he died in a few minutes. Evidence for the state tended to show that the flashes of the three shots were seen to proceed from a direction and a distance which would locate them upon the back porch of defendant's dwelling house. Defendant and her son were at home at the time--that is, they were found there very shortly after the shooting--but the house was dark. Defendant, testifying in her own behalf and denying any knowledge of the occurrence said that she had retired for the night. She was not asked to say anything concerning her son, nor did he appear as a witness. Upon demand of the officers, defendant and her son produced a revolver of old type and a shotgun as being all the firearms in their possession. Next morning, defendant and her son having been in custody in the meantime, officers searching the premises found in a large can nearly filled with flour, and near the bottom of the can, an automatic pistol, and a week or more afterwards a girl of 13 found near the garden fence, and about 18 feet, as she stated, from the back porch, three empty shells of the same caliber as the automatic weapon. A steel-jacketed bullet of the same caliber was found embedded in the front of the church about three feet above the ground. The old type revolver was of like caliber, but there was evidence going to show that the shells and the steel-jacketed bullet could be used only in an automatic revolver of the caliber of the weapon found in the flour can. Defendant testified that she had owned an automatic, but that she had lost it on a trip to Florida taken a few weeks before--in an automobile, as we infer--and, testifying at the trial, she said she had poured a sack of flour into the can without knowledge of the fact that the pistol was there. She said that she could account for its being there on the hypothesis only that it had been accidentally dropped out of the bag in which she carried it into the can in which she had taken some eggs to Florida for sale, a part of which she had bartered for a sack of flour.

Instructing the jury as to the law of felonious homicide, the court defined murder in the first degree, in the language of the homicide statute (section 4454 of the Code), as any kind of willful, deliberate, malicious, and premeditated killing, and again, in the language of a later clause of the statute, as a killing "perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life." In the next place, the jury were instructed that "if she [defendant] aided or abetted any way in the firing of the shots testified about, or participated in and about the firing of the shots"--meaning as the context discloses, that if the shots were fired at her instance or by her procurement--"then it would be for you to say" whether she was guilty under the last-quoted clause of the statute. Then the court very briefly defined murder in the second degree as where a killing is done "unlawfully, without legal excuse or justification, purposely, willfully, and prompted by malice." Defendant excepted to so much of the charge as submitted to the jury any question as to whether or not she aided in firing the shots. We have stated the order in which the court proceeded. We construe the instruction as to aiding and abetting as supplemental to the definition of murder in both degrees.

It will be observed that, apart from any inference unfavorable to defendant that may have been drawn from defendant's method of accounting for the pistol in the flour can, the evidence, the substance of which has been stated, affords no answer to the question whether defendant or her son fired the shot which killed deceased, nor, if it be assumed that the son fired the shot, was there evidence that the defendant on trial aided or abetted the act in any way. The jury may have inferred that one or the other of them fired the shot, but if the inference was that the son did the act, there was nothing on which to hang the further inference that the mother aided or abetted the act. The mere presence of the two in the house, in the circumstances stated, afforded no clue as to which of them did the act, or that the act, done by one, was aided and abetted by the other. Nor would the fact that defendant on trial then or previously made a false...