Bridges v. State

• Decision Date: 30 June 1933
• Docket Number: 6 Div. 433.
• Parties: BRIDGES v. STATE.
• Court: Alabama Court of Appeals

152 So. 51

26 Ala.App. 1

BRIDGES v. STATE.

6 Div. 433.

Court of Appeals of Alabama

June 30, 1933

Rehearing Denied Sept. 12, 1933.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

R. A Bridges was convicted of murder in the second degree, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Bridges v. State (6 Div 465) 152 So. 54.

Fort, Beddow & Ray, Albert Boutwell, and Crampton Harris, all of Birmingham, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.

SAMFORD, Judge.

This is the second appeal in this case. Bridges v. State, 225 Ala. 81, 142 So. 56. A companion case, in which many of the questions involved are discussed, is Cline v. State (Ala. App.) 148 So. 172.

The defendant stands convicted of the murder of Edward Francis Van Merkestyn, by an explosion of dynamite. The evidence for the state tends to prove that about 8 o'clock p. m. July 10, 1931, deceased and a companion were walking along a street in Birmingham, Ala., in front of the plant of the Pure Milk Company on Avenue G; that as they approached the front of the milk plant there was an explosion of a dynamite bomb on the inside of the milk plant, and as a result of this explosion deceased was killed.

It may be stated as facts conceded in this case, or at least not disputed, that the bomb, which destroyed the milk plant and killed deceased, was prepared by some party or parties ignited, and thrown into the milk plant with such reckless disregard of human life as to constitute murder. In fact, we may add that the undisputed facts as shown by this record not only disclose a total and depraved disregard of the rights of property and of human life, but evinces a revolt at civil liberty and organized government. It is hard to realize that such a crime could have been designed and carried to fulfillment in a civilized community and that a jury could be found whose verdict would, in a measure, condone such a crime.

We are moved to the above expression by reason of the criticism of the trial judge in appellant's brief, on account of the remarks made by him to the jury after verdict and at the time of sentence, growing out of his indignation at what he conceived to be a too great leniency on the part of the jury in fixing the punishment for a crime so heinous, after the jury believed beyond a reasonable doubt that defendant was guilty.

The corpus delicti having been fully established, there remained but one question to be determined: Was the defendant a guilty agent? Upon this question the evidence is in conflict. The positive and circumstantial evidence for the state tends to prove, not only that defendant participated in the commission of the crime, but that he was a leader in it. The evidence for the defendant is contra, thus making a question for the jury.

A large part of brief of counsel is devoted to a discussion of the state's evidence in an insistence that the corroboratory witnesses for the state were so thoroughly impeached as not to amount to such corroboration of the testimony of accomplices as is contemplated by the statute. This is not a question for this court to pass upon. The credibility of the testimony is for the jury. Theirs is the responsibility to weigh and consider the testimony. The jury and not the court must say whether a witness is to be believed. If these corroborating witnesses are to be believed, then the testimony of McAvoy and Gilpin, who were accomplices, was corroborated in such material particulars as to make their entire testimony available to the state as a basis for a verdict of guilt. If upon consideration of the testimony of McAvoy and Gilpin, in conjunction with the corroborating testimony, the jury should believe beyond a reasonable doubt that such testimony is true, there could be no escape from a verdict of guilt.

We have no doubt but that the story of the crime as related by McAvoy and Gilpin had some weight with the jury and served to clear up many details during the preparation and consummation of the crime. But, the corpus delicti having been proven, the entire testimony of McAvoy and Gilpin might be eliminated and still leave sufficient evidence upon which to base a verdict of guilt. Appellant's counsel, however, insist that this testimony given by the witnesses Lance and Turner is not to be believed, and again we point out that that, too, is a question for the jury.

Appellant complains that the court gave two written charges and after giving them as written said: "I know, as you gentlemen know, that it is true that part of the evidence in the case is circumstantial and it is also true that part of the testimony is direct testimony of eye witnesses in the case, and those two charges which have been given you relate to that portion of the evidence which is circumstantial evidence." It is insisted that this explanation passes upon the credibility of those witnesses who had testified to what they had seen. The explanation did not even tend to relate to that subject. The only effect was to call the jury's attention to the difference in the law as applied to circumstantial and direct...