Cooper v. State

• Decision Date: 16 August 1966
• Docket Number: 3 Div. 215
• Parties: Oates Lamar COOPER v. STATE.
• Court: Alabama Court of Appeals

Page 224

191 So.2d 224

43 Ala.App. 385

Oates Lamar COOPER v. STATE.

3 Div. 215.

Court of Appeals of Alabama.

Aug. 16, 1966.

Rehearing Denied Sept. 20, 1966.

I. Edwin Moore, Montgomery, for appellant.

Richmond M. Flowers, Asst. Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.

CATES, Judge.

This appeal was submitted June 23, 1966.

Cooper was convicted on an indictment charging him with the grand larceny of an automobile, the personal property of Jack Hendricks alleged to be worth $3,000. After verdict the trial court sentenced him to six years in the penitentiary.

On the night of May 19, 1964, Mr. Hendricks parked his car near the First Baptist Church in Montgomery, Alabama, leaving the key in the ignition lock. About nine o'clock he came out of the church to discover his car was missing.

The State's evidence is based upon the testimony of Cooper's brother, Gary I. Cooper. As we view his evidence, the brother can only be considered an accomplice.

Accordingly, in reviewing the facts, we lay aside his testimony to point out that the first neutral witness to account for the automobile was a State Trooper, P. C. Stacks. This officer was on a road outside Eufaula in Barbour County early on the morning of May 20 checking drivers' licenses.

A two-door Ford car came by him at a high rate of speed and he gave chase, sometimes reaching a hundred miles an hour. He finally stopped the car which was driven by the appellant's brother, Gary. Mr. Stacks turned the investigation of the car over to a Mr. Gatlin of the State Department of Public Safety.

In the trunk Mr. Gatlin discovered a number of tools belonging to Mr. W. T. Boyette, who operated a filling station and garage at which the defendant had previously worked. Mr. Boyette stated that the brother, Gary, had also come by his place of business on several occasions so that we conclude from a reading of the entire testimony that the brother, Gary, had equal access to the working area of Mr. Boyette's garage.

The brother's testimony was that on the day in question he had been staying in a boarding house sharing a room with the appellant. On the afternoon in question he had gone to a picture show and then to a pool parlor.

About 8:00 or 8:30 his brother appeared with the car in question telling him that he had borrowed it from a girl so that he could go back to the home place in Barbour County. The two of them proceeded to Barbour County that night.

On the way Gary admitted that he had helped the defendant take the Alabama tag off and put a Georgia tag on. ¹ Furthermore, somewhere en route the appellant turned the car over to him to drive, and that during this journey the appellant had told him that he had borrowed the car 'permanently.'

The brother, Gary Cooper, admitted that he was driving the car the following day. At the close of the State's evidence, the defendant made a motion to exclude it.

Code 1940, T. 15, § 307, provides:

'A conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.'

In the case of Sorrell v. State, 249 Ala. 292, 31 So.2d 82, the court, per Mr. Justice Simpson, quoted this statute and stated as follows:

'* * * The corroboration necessary to support the testimony of an accomplice must be of some fact tending to prove the guilt of the accused. It is not sufficient if it is equivocal or uncertain in character and must be such that legitimately tends to connect the defendant with the crime. It must be of a substantive character, must be inconsistent with the innocence of the accused and must do more than raise a suspicion of guilt. * * *

'We think the following test soundly states the principle and is particularly applicable to the case at bar: '* * * the proper test in determining whether there was sufficient corroboration of the testimony of an accomplice, according to statutory requirements, is first to Eliminate the evidence of the accomplice and then, if upon examination of all the other evidence there is sufficient inculpatory evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration.' 2 Wharton, Criminal Evidence § 752, 11th Ed.' (Italics added.)

Cf. Lumpkin v. State, 68 Ala. 56.

The latter quoted rule has been consistently cited both directly by quotation and by reference so as to have become a fixed rule of interpretation of § 307, supra.

This court, in matters of State law, is governed statutorily by the decisions of the Supreme Court of Alabama. Code 1940, T. 13, § 95.

Taking this rule and admeasuring the evidence of instant concern, we find no evidence independent of Gary Cooper's which unequivocally points to the guilt of the appellant.

The brother, Gary Cooper, is found in possession of the car, a fact which, had a jury convicted him, would have alone been sufficient to support an inference of his guilt. Travis v. State, 32 Ala.App. 637, 29 So.2d 359. He explanation cannot make him altogether innocent, since (a) he helped change the tag on the car, and (b) even if, theretofore, he had not been told, according to his own story, that the brother had stolen the car, certainly on the following morning when he alone was caught driving it, he had been told the night before that the car had been borrowed 'permanently.'

We reject any argument that the brother, Gary, was only an accomplice in the sense that he was a mere accessory after the fact.

Accomplice denotes one who is particeps criminis, a partner in crime. Davidson v. State, 33 Ala. 350. Undoubtedly, it embraces principals and accessories before the fact. Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712, seems to be the latest case in which the Supreme Court has defined 'accomplice.'

Neither accessories before nor after the fact are among those present at the locus criminis.

Accessory before the fact' we find in Griffith v. State, 90 Ala. 583, 8 So. 812, thus:

'* * * one who counsels, commands, or procures another to commit a crime, not being himself actively or constructively present at the time of its commission. * * *'

'Accessory after the fact' is by statute one who, with knowledge that a felony has been committed and not being parent, child, brother, sister, or spouse of the felon, conceals, or gives any other aid to him so as to enable him to avoid or escape from arrest, trial, conviction or punishment. Code 1940, T. 14, § 15. ²

That § 307, supra, uses 'accomplice' as including an 'accessory after the fact' is doubtful. Belser v. State, 16 Ala.App. 604, 79 So. 265.

The various definitions of the term convey the idea that an 'accomplice' is one who is concerned with others in the commission of a crime, and the usual test of whether one is an accomplice of an accused on trial is whether he could be prosecuted and punished for the crime with which the accused is charged.' 23 C.J.S. Criminal Law § 786(1).

Merely the fact of an indictment having been laid against the witness does not alone brand him as an accomplice of a defendant. Welch v. State, 35 Ala.App. 643, 51 So.2d 905. However, if the State's case rests on an imputation of coeval guilt on the part of the prosecution's witness, then as a matter of law corroboration is vital to convict a defendant.

As we view the theory of the State's evidence, it would seem to be that the crime of larceny was committed and completed when a thief drove away Mr. Hendricks's automobile from the neighborhood of the First Baptist Church in Montgomery. If the brother, Gary Cooper, had any complicity arising out of changing the automobile tags and taking over the operation of the vehicle, this, the State seems to contend, was an independent act separated in time and place from the original asportation.

Hence, at most, this would make Gary only guilty of being a receiver of stolen goods when he came into the knowledge that the car had been borrowed 'permanently.'

However, it is also a legitimate inference that his being seen in possession thereof by the Highway Patrolman would alone and unexplained have been sufficient to have supported a larceny conviction against him.

That the crimes of larceny and receiving stolen goods sometimes have a tendency to overlap in time and place is well illustrated not only by this case but also in Morris v. State, 17 Ala.App. 126, 82 So. 574, wherein Judge Samford commented:

'* * * Besides, the crime of 'larceny' is the felonious taking and carrying away of chattels, and every person who, with a guilty knowledge, aids, and abets in the taking and carrying away, is guilty of the larceny...