Cline v. State
| Decision Date | 09 May 1933 |
| Docket Number | 6 Div. 278. |
| Citation | 148 So. 172,25 Ala.App. 433 |
| Parties | CLINE v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.
Mabel Cline was convicted of manslaughter in the first degree, and she appeals.
Reversed and remanded.
Ross Bumgardner, Ross & Ross, of Bessemer, for appellant.
Thos E. Knight, Jr., Atty. Gen., for the State.
From the undisputed evidence it appears that on the night of July 10, 1931, the plant of the Pure Milk Company was destroyed by the explosion of a dynamite bomb, consisting of twenty-five sticks of dynamite, prepared by R. A. Bridges and Burge Gilpin and thrown into the front of the building of the Pure Milk Company by Bridges; that the explosion wrecked the building and killed Edward Merkestyn and injured several others. The evidence further tends to prove, and indeed is not denied, that the act was carefully planned and executed according to a deliberate, formed design evidencing such a depraved mind and reckless disregard for human life as that the slaying of Merkestyn is murder in the first degree. Bridges v. State, 225 Ala. 81, 142 So 56.
So far as the corpus delicti is concerned a fair statement of the facts may be found in the reported case of Bridges v. State, 225 Ala. 81, 142 So. 56, and in that case all necessary questions relating to the commission of the crime by Bridges have been passed upon. The crime, therefore, with all of its heinousness having been proven, none of the rulings touching its consummation could possibly injuriously affect this defendant except such as tend to connect this defendant with Bridges in his hellish design.
It having been determined that the deed was committed by Bridges and that Gilpin and McAvoy were particeps criminis, the question to be determined in the instant case is, whether or not this defendant aided or abetted in the concoction of the plan to explode the bomb in the plant of the Pure Milk Company. For if this defendant, by word or deed, aided or abetted in the preparation of the bomb thrown by Bridges into the building of the Pure Milk Company or in any way gave encouragement to the unlawful act, which resulted in the death of deceased, she would be just as guilty as Bridges. Code 1923, § 3196; Sullivan v. State, 23 Ala. App. 10, 119 So. 243; 39 Corpus Juris, 1073 (46) (bb); Ex parte Lawrence, 21 Ala. App. 537, 109 So. 615.
In proof of the participation of this defendant in the plot to bomb the Pure Milk Company's plant, the inquiry must of necessity take a wide range. Many acts and doings of defendant and those associated with her, which of themselves may appear innocent enough, may, when linked with others, construct a chain of circumstances thoroughly convincing of the guilt of defendant. Any fact or circumstance, either direct or circumstantial, tending to establish a concurring agreement to carry into effect a common purpose to commit the crime, or which tends to prove that defendant aided or abetted in preparation for the crime is relevant and admissible. Lancaster v. State, 21 Ala. App. 140, 106 So. 609.
It may here be said that in the development of a case based upon circumstantial evidence, the whole testimony cannot be presented at one time, but piece by piece and link by link, each link having relation to that preceding it. If when the evidence is complete there is a missing link, the court should on motion exclude the whole, but in the progress of development the court must allow great latitude.
It is contended by appellant that there is no sufficient evidence that the defendant was an accomplice of Bridges et al. As to this there was evidence tending to prove that this defendant and her daughter were living in a small house in Huffman, a suburb of Birmingham; that the kitchen and dining room were one and the same; that on the night of July 10th, Gilpin and Bridges brought a box containing fifty pounds of dynamite sticks into the house, set it down in the kitchen-dining room while Bridges, Gilpin, McAvoy, defendant, and her daughter were eating supper; after supper the box of dynamite was opened with a hammer there in the kitchen, twenty-five sticks of the dynamite taken out, made into the bomb, by putting fuses and caps into two of the sticks, tying the sticks together, fastening a brick to one end, and wrapping the whole with paper. While preparing the bomb, Gilpin cut a short piece of fuse from a longer piece and threw the long piece upon the roof of the back porch, taking the short piece with which to fix the bomb. While the making of the bomb was in progress, this defendant was present. When the bomb was completed, all of the parties left the house together, Bridges bringing the bomb and placing it on the back seat of McAvoy's car, then with Gilpin and defendant in one car and McAvoy, Mrs. Chambers, and Bridges in another car the whole party left the house together going to Birmingham. After getting to Birmingham, Gilpin got in the car with Bridges and the others with the other car went on to St. Vincent's Hospital where they were when the explosion took place. After Bridges had thrown the bomb, they went directly to St. Vincent's Hospital where all the parties met as had been prearranged. Leaving St. Vincent's Hospital the party traveling in the two cars drove to the Ritz Pool Room, where Bridges bought a newspaper, and then all of the parties repaired to the Cline home, where Bridges read aloud to the party the report in the newspaper of the bombing, upon which defendant commented: "It was a pretty smooth job; got away all right."
The foregoing evidence, together with some minor details not mentioned, was sufficient, if believed beyond a reasonable doubt to connect the defendant as an accomplice. It is inconceivable that in the midst of all the unusual activity at defendant's home and in her very presence, incident to the making of the bomb, the preparation for the trip to town, the changing of places in the automobiles, the separation at the time of the explosion, the rendezvous immediately afterwards, the return of the party to defendant's home, the interest shown by her in the newspaper account of the crime, her expression of approval of the "get away," that the defendant could have remained in ignorance of the contemplated crime and its execution, and the lending of her presence in it all might well lead the jury to the conclusion that she was aiding and abetting in whatever was done.
The foregoing facts and inference tending to connect defendant with the commission of the crime charged depend upon the testimony of Gilpin, an acknowledged accomplice, whose testimony must be corroborated in order to justify a conviction (Code 1923, § 5635), and McAvoy, who may or may not be an accomplice according to the finding of the jury. If the jury believe from the evidence that McAvoy was an innocent party in the transaction and neither aided nor abetted in the crime charged, then and in that event his testimony in corroboration of the testimony of Gilpin would be sufficient upon which to base a verdict of guilt in this case. Morris v. State, 17 Ala. App. 126, 82 So. 574.
It is insisted also by the state and contra by the defendant that the testimony of Gilpin is corroborated by the witness Sandefer, a police officer of the city of Birmingham, in a material particular. After giving testimony tending to show that he and Bridges had made the bomb at the home of this defendant and some testimony tending to show knowledge of its making by this defendant, Gilpin testified: "I threw the fuse I cut off, from the long piece upon a little offset there on the back porch of this defendant's house." Sandefer was then permitted to testify for the state, over legal objection and exception, that twelve days after the bombing he went to defendant's house, made a "pretty thorough" search, and found two pieces of dynamite fuse on top of the back door, up over the back door, and this was rolled up and stuck up under the shingles of the roof of the porch. The rule as to the necessary corroboration of an accomplice warranting a conviction, is that the corroborative testimony must tend to connect the defendant with the commission of the offense. Code 1923, § 5635; Lotz v. State, 23 Ala. App. 496, 129 So. 305; Morris v. State, 17 Ala. App. 126, 82 So. 574. Conceding that the finding of the piece of dynamite fuse may have been evidence against Gilpin, its finding did not tend to connect this-defendant with the commission of the crime.
It is insisted that evidence obtained by a search of the house and premises where defendant was living is illegal and inadmissible because the search itself was illegal. Such is the law in some jurisdictions but not in Alabama. Since the case of Scott v. State, 113 Ala. 64, 21 So....
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