Dailey v. State
Decision Date | 17 December 1936 |
Docket Number | 1 Div. 921 |
Citation | 233 Ala. 384,171 So. 729 |
Parties | DAILEY v. STATE. |
Court | Alabama Supreme Court |
Rehearing Denied Jan. 21, 1937
Appeal from Circuit Court, Washington County; J. Blocker Thornton Judge.
Wash Dailey was convicted of murder in the first degree, and he appeals.
Affirmed.
Granade & Granade, of Chatom, for appellant.
A.A Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty Gen., for the State.
Appellant, Wash Dailey, was jointly indicted with Wesley Berry, Joe Skumro, Nollie Mizelle, and Eugene Mizelle for the murder of Abe Baxter.
After severance, separate trials have been had. This is the third to be reviewed by this court. See Berry v. State, 231 Ala. 437, 165 So. 97, and Skumro v. State (Ala.Sup.) 170 So. 776.
Eugene Mizelle became a witness for the State, indeed the only direct witness as to the fact of a murder, the parties present and participating therein, the circumstances attending the slaying, and later efforts at concealment and suppression of evidence.
The chief insistence for reversal rests on three propositions, viz.:
1. This witness, by his own version of the affair, was an accomplice.
2. There was no sufficient evidence of the corpus delicti.
3. There was no corroborative evidence tending to connect Wash Dailey, this appellant, with the commission of the crime as required by Code, § 5635.
The governing rules of law on these questions were considered in the Berry and Skumro Cases, supra. They need not be repeated here.
Considering the evidence as presented in the record now before us, we conclude, for reasons stated in the Skumro Case, the evidence of duress under which Mizelle fired upon the deceased, taken in connection with all the evidence, did not show, as matter of law, that he was not a guilty participant in the killing. The readiness with which he went through the pockets of the dead man, got his money, his watch, his pocket knife, handed them to this appellant and shared in the division of the money, his joinder in repeated and gruesome efforts to conceal, all appearing in his testimony affords further ground for inference that he was a willing accessory to or participant in the crime. Forcing him into the lead to fire the first shot may, inferentially, have been to keep him silent thereafter. The deceased was his uncle, brother of his mother, who is still living. Witness was staying, at least part of his time, with this uncle.
The trial court, at defendant's instance, instructed the jury that witness was an accomplice, and fully instructed them on the necessity for corroboration; and the nature of corroborative evidence required both on the corpus delicti and on the connection of defendant with the slaying.
Without inquiring whether corroborative evidence in proof of the corpus delicti was necessary (16 C.J. page 700), we find numerous circumstances tending to corroborate Mizelle's testimony that Abe Baxter is dead, and came to his death by violence. Several of those circumstances are recited in the latter part of the opinion in the Skumro Case, supra.
This case involved both proof of the corpus delicti and proof of defendant's connection with the killing. Evidence may tend to support one and not the other of these issues. Evidence tending to establish either of these major facts was admissible. If any item of evidence should be limited to proof of the corpus delicti, a ruling to that effect should have been requested of the trial court.
Corroborative evidence connecting the defendant with the murder may relate to facts testified to by the accomplice, but the probative force of such evidence cannot depend on the testimony of the accomplice. It must strengthen that of the accomplice; must bring in material facts tending to connect the accused with the crime from sources other than the bare testimony of the accomplice. This corroborative evidence may, of course, relate to matters wholly unknown to the accomplice, neither testified to by him, nor connected with what he says.
One of the circumstances tending to connect the defendant with the killing relates to the pocketknife of the deceased. Mizelle said he took this knife from the pocket of deceased at the time of the murder and robbery, and handed it to this defendant. Other witnesses testify that some three months later, defendant had possession, and disposed of the knife to another. The knife was in court and was quite positively identified by the sister of decedent, mother of Mizelle, as the pocketknife of deceased which had been in the family many years. Defendant and his witnesses denied the identity of the knife, testified that the knife in court was obtained from another source prior to the...
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