Brindley v. State

• Decision Date: 03 June 1915
• Docket Number: 954
• Parties: BRINDLEY v. STATE.
• Court: Alabama Supreme Court

69 So. 536

193 Ala. 43

BRINDLEY v. STATE.

No. 954

Supreme Court of Alabama

June 3, 1915

Rehearing Denied June 30, 1915

Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.

Alpheus Brindley was convicted of murder in the first degree, and he appeals. Affirmed.

F.E St. John and George H. Parker, both of Cullman, and William H. Stoddard, of Luverne, for appellant.

W.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

THOMAS J.

This cause was submitted on motion to establish a bill of exceptions and on the merits. The record informs that the case was tried on the 25th day of August, 1914; that the bill of exceptions was indorsed, "Presented," on November 21, 1914, by Hon. D.W. Speake, the presiding judge and that Judge Speake died on the 3d day of January, 1915 after failing to sign the same as a bill of exceptions. An agreement was incorporated in the record of the case, signed by the Attorney General of the state of Alabama and the solicitor of the Eighth judicial circuit of Alabama, and by George H. Parker as attorney for the defendant, stipulating to the effect that the said document, purporting to be a bill of exceptions, and now presented to the Supreme Court to be established as such, correctly and truly states the points for decision, together with the facts in said cause.

Appellant's motion to establish his bill of exceptions is granted, and the cause will be heard on its merits.

The appellant, Alpheus Brindley, was tried for murder in the first degree in the circuit court of Cullman county, Ala., and was convicted and sentenced to the penitentiary for life. Appellant was indicted jointly with Clyde Patterson and John W. Patterson for the killing of Robert Miller, by shooting him with a gun. Severance was demanded, and granted, and the two Pattersons were tried and convicted, and sentenced to the penitentiary for life. Patterson v. State, 67 So. 997. On the trial of appellant, Brindley, the testimony for the state tended to show that on Monday, the 20th of July, 1913, the deceased, Bob Miller, his father, Mack Miller, and his kinsman, Rube Carter, came from their home into the town of Cullman, arriving in the morning, and that they departed in the evening in a wagon; that Robert Miller and his father were sitting on the wagon seat, and Carter was sitting in the back part of the wagon; that when they had proceeded about two miles, and reached a point where the road makes a sharp curve and is secluded by a dense wood, two shots were fired upon them, killing Robert Miller and Rube Carter. Clyde and John Patterson were recognized, standing with guns in hand, one pulling the breach of his gun; and both went away in the direction of the field and woods, whence their tracks were followed to the road. The vicinity where the shooting occurred showed preparation for the homicide, and buckshot were taken from trees along the line of fire, and others, from the bodies of the deceased men, of the same kind and size. The evidence showed strong motive, and threats, on the part of the defendant Brindley and the Pattersons, against Miller.

It would subserve no good purpose to set out the evidence. It is sufficient to say that from the whole evidence a conspiracy, on the part of Brindley and the Pattersons, to take the lives of the Millers, may be inferred. It is not necessary to prove a conspiracy by positive evidence, but its existence, may be inferred from circumstances attendant upon the doing of the act, and from the conduct of the parties subsequent to its commission. Morris v. State, 146 Ala. 66, 41 So. 274; Buford v. State, 132 Ala. 6, 31 So. 714; Tanner v. State, 92 Ala. 1, 9 So. 613; Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am.Rep. 133; Martin v. State, 89 Ala. 115, 8 So. 23, 18 Am.St.Rep. 91; Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am.St.Rep. 96; Elmore v. State, 110 Ala. 63, 20 So. 323; Evans v. State, 109 Ala. 11, 19 So. 535; Johnson v. State, 29 Ala. 62, 65 Am.Dec. 383; Scott v. State, 30 Ala. 503. And no positive agreement to commit the crime need be shown. Marler v. State, 67 Ala. 55, 66, 42 Am.Rep. 95; Jones v. State, 174 Ala. 53, 57 So. 31.

The testimony of witness Wren was that he overheard defendant Brindley, after being incarcerated in the Jefferson county jail, ask Patterson if he knew what Grady Harris had done, and Patterson said in reply that he heard Harris had turned state's evidence; that the conversation was then interrupted by the noise of a hammer on a building near by, and witness then heard Patterson say he could prove an alibi if he could find the right man, and Brindley replied, "They all know I was up there at the saloon;" that there was another space of time in which witness could not hear what they said, after which witness heard Brindley ask Patterson what he did with the guns, and heard Patterson reply, "They are all right; they won't find them; they hid them under an old rail fence;" and that witness further heard Brindley ask Patterson why he did not get the old man, and Patterson replied that he "had to leave there too quick."

Declarations made by a defendant, both before and after the commission of the homicide with which he is charged, tending to connect him with it, are admissible as evidence against him. Johnson v. State, 87 Ala. 39, 6 So. 400. The witness Wren testified that he was acquainted with, and knew the voices of, the Pattersons and Brindley; that he heard the conversation above detailed through a "detectaphone," installed in the room of the jail where the defendant and the Pattersons were confined. He explained how the instrument was installed, how the "receiver" was inbedded in the wall of the cell where the defendant and the Pattersons were confined, and how the "transmitter" was situated in the room where witness was listening, and how the two instruments were connected by electric wiring charged by batteries. The detectaphone was shown to the jury, and explanation was made to them how it was installed, and how the conversation was overheard.

With the perfection, and widespread use, in modern life, of devices for electro-telephonic communication, by means of which direct communication is had over great distances and the human voice understood and recognized, it is but reasonable to assume that the explanations of the witness, of the device, and the exhibit thereof, were within the practical comprehension of the jury; and it was therefore competent for this witness to detail to the jury the conversation between defendant and the others accused, and to exhibit to the jury a "detectaphone," explaining its operation to them. W.U.T. Co. v. Rowell, 153 Ala. 295, 314, 315, 45 So. 73; W.U.T. Co. v. Saunders, 164 Ala. 234, 51 So. 176, 137 Am.St.Rep. 35. Mr. Wigmore, in his work on Evidence (volume 1, § 669), discusses the admissibility of authenticated information by telephone. Sullivan v. Kuykendall, 82 Ky. 487, 56 Am.Rep. 901; Oskamp v. Gadsden, 35 Neb. 7, 52 N.W. 718, 17 L.R.A. 440, 37 Am.St.Rep. 428; Globe Print. Co. v. Stahl, 23 Mo.App. 451; German Bank v. Citizens' Bank, 101 Iowa, 530, 70 N.W. 769, 63 Am.St.Rep. 399; Wolfe v. M.P.R. Co., 97 Mo. 473, 11 S.W. 49, 3 L.R.A. 539, 10 Am.St.Rep. 331; Brown v. Com., 76 Pa. 319; People v. Ward, 3 N.Y.Cr.R. 483. In Andrews v. State, 33 Ohio Cir.Ct.R. 564, it was held that experiments made by the inventor and maker of a different...