Brown v. State

• Decision Date: 27 June 1944
• Docket Number: 8 Div. 410.
• Parties: BROWN et al. v. STATE.
• Court: Alabama Court of Appeals

19 So.2d 88

31 Ala.App. 529

BROWN et al. v. STATE.

8 Div. 410.

Alabama Court of Appeals

June 27, 1944

Rehearing Denied Aug. 22, 1944.

Appeal from Circuit Court, Lauderdale County Chas. P. Almon, Judge.

Bradshaw & Barnett, of Florence, for appellants.

Wm N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty Gen., for the State.

CARR Judge.

The appellants were jointly tried and convicted in the Circuit Court of Lauderdale County, Alabama, on an indictment charging arson, more specifically that they willfully set fire to, or burned, or aided or procured the burning of a barn, the property of William Marshall Camp.

Appellant Luther Brown is the father of appellant Dennis Brown and the brother-in-law of William Marshall Camp.

Appellants' most insistent contention for error is the refusal of the trial court to give, as requested, the general affirmative charge in behalf of each appellant because of a failure in the evidence to corroborate the testimony of an admitted and avowed accomplice. We are of the opinion, and so hold, that this position must be sustained. Our attention, therefore, in this opinion will be directed primarily to this inquiry.

The barn, the subject of this prosecution, was admittedly burned by Spencer Howard shortly after midnight, January 28, 1942, by the use of gasoline to originate the fire. It is not the contention of the State that either of the appellants was present or in any way participated in the physical burning. The State does insist, however, that the two appellants aided or procured the burning of the barn, as alleged in the indictment. Title 14, § 24, Ala.Code 1940; Title 14, § 14, Ala.Code 1940.

As stated, the confessed accomplice was Spencer Howard, who at the time of the trial was 24 years of age. He began his hazardous and persistent criminal career at the age of 16, when he was committed to the reform school for stealing corn. Subsequently thereto and prior to the date of this trial his record, according to his admissions, was: Two pleas of guilty for larceny, one for burglary for which he served a term in the State penitentiary, and at the time of this trial was under indictment for stealing tires, batteries and plow tools.

In March 1943, over one year after the barn burning, while incarcerated in Limestone County jail, being held on the last named indictment, Howard voluntarily sent for the sheriff and confessed to burning the barn and implicated the two appellants. He later appeared before the grand jury, but was not indicted on the arson charge.

The evidence of Spencer Howard on the trial of this case, as a witness for the State, was in substance as follows: Howard was employed by appellant Luther Brown as a laborer on his farm. Appellant Dennis Brown lived a few miles distant. On the afternoon of January 26, 1942, Dennis came to the field where his father, Luther Brown, and Howard were building a fence, near the barn which, on January 28th following, Howard unlawfully burned. Dennis suggested to Howard that they "walk around." Luther Brown returned to his home and Howard and Dennis proceeded to the home of Ed Cook, where Dennis had formerly lived, coming back by the barn in question, and went in same. Dennis agreed to pay Howard $10 to burn the barn. Dennis and his wife spent that night at the home of his father, Luther Brown. The next afternoon, January 27th, Luther and Howard carried Dennis and his wife home. Before leaving, however, upon the suggestion and direction of Luther Brown, a one-gallon oil can partly filled with gasoline, taken from Luther Brown's garage, was placed in Luther's car. On the journey after leaving the home of Dennis, Luther and Howard proceeded away from the direction of the barn to Leo Thornton's place of business, which is styled in the testimony as a "beer joint." Before reaching Thornton's place and about 200 or 300 yards therefrom, Howard took the can of gasoline out of the car and concealed it near by. Luther and Howard drank some beer at Thornton's place and, after a period of about thirty minutes, Luther left in his car. After Luther had departed, Howard bought an empty beer bottle from Thornton and filled it with gasoline from the can which had been deposited as above stated. Upon his return to Thornton's place with the filled beer bottle, Howard said to Thornton, "Whatever is behind your sign board you can have it." At about 9:30 or 10 o'clock, Howard left the "beer joint" in a car with a man by the name of Cates. He later got out of Cates' car, walked a few miles, sat down and waited until after 12 o'clock, when he set fire to the barn. At an early hour the same morning, Howard appeared at the home of appellant Dennis Brown and rode from there in a car, with one J.E. Patterson driving, to Athens. Dennis and some others who were working at Huntsville were in the car. According to Howard's statement, Dennis paid him the promised $10 on the occasion of his arrival at Dennis' home and before starting on the trip to Athens and Huntsville.

Leo Thornton, a witness also for the State, corroborated Howard's testimony concerning the visit to his "beer joint" and also the statement relating to the oil can behind the sign board. Thornton stated further that he went to the described place next morning and found a tin can containing gasoline or coal oil.

The appellant Dennis Brown admitted going to the barn on the afternoon of January 26th with Howard. He stated he had lived on the farm on which the barn was located and was contemplating moving back. He admitted also the circumstances of the ride from his home via Athens to Huntsville, but explained that he was then employed at Huntsville and rode every morning to his job with his father-in-law, Patterson. Dennis denied any involvement in the burning of the barn or any conversation with Howard relating thereto.

Appellant Luther Brown admitted the related facts with reference to the journey from his home by Dennis' home and to the "beer joint", also the fact of his leaving after about a thirty minute stay. He denied any knowledge or connection with the oil can, and there was no direct proof contra.

In our effort to find any testimony in this case that adds strength to that of the accomplice and tends to connect either of the appellants with the crime involved, we observe as to Dennis Brown two incidents of slight probation. His visit to the barn on January 26th, prior to the burning on January 28th, and the appearance of the accomplice at his home in the early morning hour on the latter date.

As to appellant Luther Brown, we find only the visit to the "beer joint" and the finding of the oil can behind the sign board.

In making the above observations, we have been mindful of the well recognized rule of law that the corroborating evidence must consist of facts and circumstances independently of that of the accomplice "and the material inquiry as...