Cleveland v. State

• Decision Date: 16 December 1924
• Docket Number: 1 Div. 591
• Parties: CLEVELAND v. STATE.
• Court: Alabama Court of Appeals

103 So. 707

20 Ala.App. 426

CLEVELAND v. STATE.

1 Div. 591

Court of Appeals of Alabama

December 16, 1924

Rehearing Denied Jan. 13, 1925

Appeal from Circuit Court, Mobile County; Ben D. Turner, Judge.

John G., alias Jack, Cleveland was convicted of murder in the second degree, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Cleveland, 103 So. 711. See, also, 19 Ala.App. 695, 99 So. 927.

Harry T. Smith & Caffey, of Mobile, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

Appellant John G. Cleveland, alias Jack Cleveland, was convicted of murder in the second degree in the circuit court of Mobile county. The indictment contained four counts. Each was in statutory form, and each charged appellant with killing Stephen Lossing. The first charged the killing to be done by shooting deceased with a gun; the second by striking him with a spade; the third by striking him with a baseball bat; and the fourth by striking him with some blunt instrument, a more particular description of which was unknown to the grand jury. The court gave the affirmative charge for the defendant as to the second and third counts. The verdict of the jury was in the following form:

"We, the jury, find the defendant guilty of murder in the second degree and that he suffer imprisonment in the penitentiary for 15 years."

The prosecution was had upon two theories: One that the appellant killed deceased by his own act; the second that the deceased was killed by another and under circumstances that made the appellant guilty as a conspirator. The record in this case is rather voluminous for a criminal case. Much testimony was introduced by the state and by the defense. Many objections were interposed and exceptions reserved as to the testimony offered and received, and some exceptions reserved to the oral charge of the court, and a great number of requested charges were given at the request of the defendant, and quite a number so requested were refused. More than 100 written charges were requested by the defendant, most of which were given, but many refused. The case has been well and fully argued by very able counsel for appellant. The brief evidences great labor as well as skill and ability of counsel. Nearly all of the rulings adverse to appellant have been ably and fully argued by counsel for appellant. It is unnecessary to attempt to review the testimony. It is sufficient to say that the testimony was ample to justify the court in submitting the question of the guilt or innocence of the defendant to the jury under each count of the indictment. The evidence was also ample to require the court to submit to the jury the question as to whether or not there was a conspiracy to kill the deceased, and as to whether or not the defendant was a party to that conspiracy. We have studied and analyzed the evidence as carefully as we could, and have done so with the aid of able and ample brief on the part of counsel for appellant, as well as the brief of the Attorney General in behalf of the state, and after such consideration we have no hesitancy in affirming that the trial court committed no error in submitting the case to the jury under both counts of the indictment upon which the trial was had and that there was ample testimony to require the court to submit to the jury the question as to whether or not the defendant was guilty as charged by reason of being a conspirator or accessory to the crime charged.

Counsel for appellant insist most strenuously that the trial court committed error in defining a conspiracy in the failure to make a distinction or discrimination between an "unlawful" act and a "criminal" act. We have examined the authorities cited and have considered the argument of counsel upon this point, and we are satisfied that the court committed no reversible error in its definition to the jury of a criminal conspiracy. While separate phrases or separate sentences might be considered to be incomplete or possibly erroneous, when the charge or instruction of the court to the jury as a whole upon this subject is considered, it is perfectly clear that there was no reversible error committed by the trial court in its definition of a criminal conspiracy. In fact, the charge or instruction of the court, considering its oral and written charges together, was even more favorable to the accused than he had a right to demand. It is not necessary that a conspiracy should be proven by positive or affirmative testimony, nor is it necessary that it be shown that there was prearrangement to do the specific criminal act complained of. If two or more persons enter upon an unlawful undertaking with the common purpose to assist or encourage each other in whatever may grow out of or result from the enterprise upon which they have entered, each is responsible, both civilly and criminally, for everything which may consequently and proximately result from such unlawful purpose, whether it be specifically contemplated or agreed upon or not, and are liable whether it actually be perpetrated by all or by less than all of the conspirators. Conspiracy may be inferred from the conduct of the conspirators. All those who assemble themselves together, with the intent to commit a wrongful act, the execution of which renders it probable in the nature of things that a crime not specifically designated may result, but incidentally to that which was the object or purpose of the confederacy, are each responsible for such incidental crime; and where several persons agree to stand by one another in a breach of the peace, with the general intent to resist to the death all who oppose them in the execution of their design, if murder is committed, all are equally principals in the murder. Martin v. State, 89 Ala. 115, 8 So. 23, 18 Am.St.Rep. 91; Williams v. State, 81 Ala. 1, 1 So. 179; Jordan v. State, 79 Ala. 9. There can be no doubt that, if the defendant, by an agreement or understanding with others, sought a difficulty with the deceased for the purpose of chastising or beating him or having a personal difficulty with him, and in pursuance of such purpose armed themselves with weapons to be used in the event it became necessary, and such weapons were used by any one of the alleged conspirators and the deceased was thereby killed, in pursuance of such purpose, then this would be murder. There was ample evidence tending to show such a conspiracy on the part of the defendant and from which the jury were authorized to infer a common design at least to assault the deceased. There was ample evidence to submit to the jury the criminal responsibility of the defendant for the acts of others in the prosecution of the design for which they were combined, or which the evidence tended to show. Williams v. State, 81 Ala. 1, 1 So. 179.

It was unnecessary for the state to prove any express agreement on the part of the defendant or the defendants to attack the deceased or to kill him. There was ample evidence to justify the jury in finding an implied understanding established in part by direct, positive, and in part by circumstantial evidence. The presence of this defendant, aiding, abetting and encouraging others in an attack upon the deceased and other persons at his house, might justify the jury in holding him criminally responsible for the homicide, which resulted in the death of the deceased. Martin v. State, 89 Ala. 115, 8 So. 23, 18 Am.St.Rep. 91; Williams v. State, 81 Ala. 2, 1 So. 179. The charges and instructions of the court upon this theory of the case seem to be free from reversible error. Amos v. State, 83 Ala. 1, 3 So. 749, 3 Am.St.Rep. 682; Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am.St.Rep. 96. There was certainly testimony in this record to authorize the jury to find that the defendant, in conjunction...