Darden v. State

• Decision Date: 08 April 1915
• Docket Number: 117
• Citation: 12 Ala.App. 165,68 So. 550
• Parties: DARDEN et al. v. STATE.
• Court: Alabama Court of Appeals

68 So. 550

12 Ala.App. 165

DARDEN et al. v. STATE.

No. 117

Court of Appeals of Alabama

April 8, 1915

Appeal from Circuit Court, Dallas County; B.M. Miller, Judge.

Joe Darden and W.H. Daniels were convicted of burglary, and they appeal. Affirmed.

The state introduced Percy Smoke, stepson of Joe Darden, who testified that he is a little over seven years of age and under eight years, and he was permitted to testify that Joe Darden and Daniels woke him up one night after he had gone to bed and made him go with them to Carson's store, where they prized the bars apart, and put him through them, and told him to go in and open the door, and that he did so, and they made him close the door after they had entered and got what they wanted and come out again through the window. Defendants move the court to exclude all the evidence because there was no evidence which connected either or both of defendants with the crime except that of Percy Smoke, and, he being an accomplice, they could not be convicted on his uncorroborated testimony.

The following is charge 3:

If you believe from the evidence in this case that Percy Smoke is an accomplice in the commission of the alleged offense, you must acquit defendants.

Arthur M. Pitts, of Selma, for appellants.

W.L Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.

BROWN J.

An infant under the age of 7 years is conclusively presumed to be incapable of committing crime, and can in no event be held responsible (Allen v. United States, 150 U.S. 551 14 Sup.Ct. 196, 37 L.Ed.

1179; Marsh v. Loader, 14 C.B.N.S. 535; 22 Cyc. 623) while one between 7 and 14 in the absence of proof of capacity, is presumed to be incapable of committing crime (McCormack v. State, 102 Ala. 156, 15 So. 438; Martin v. State, 90 Ala. 602, 8 So. 858, 24 Am.St.Rep. 844; Godfrey v. State, 31 Ala. 323, 70 Am.Dec. 494); and the burden of proving that an infant between the ages of 7 and 14 is capable of committing crime is upon him who asserts the affirmative, and, unless there is some evidence offered tending to show that such infant was at the time of the alleged crime of sufficient maturity of mind to understand and appreciate the nature of the act, the presumption becomes conclusive that such infant is incapable of crime.

However, direct and positive evidence of capacity is not necessary, but circumstances of education, habits of life, general character, moral and religious instruction, and other circumstances immediately connected with the offense charged may in most instances be proven, and then the question of capacity is one for the jury. 22 Cyc. 625; McCormack v. State, supra; Wusnig v. State, 33 Tex. 651; State v. Toney, 15 S.C. 409.

An accomplice is defined to be "an associate in crime; a partner or partaker in guilt," and includes all participes criminis. Davidson v. State, 33 Ala. 350; English v. State, 35 Ala. 428; Bird v. State, 36 Ala. 279.

The test of the competency of the witness Percy Smoke in this case is: If he was on trial for the offense, would the evidence fending to show his guilt sustain a verdict of guilty? Bass v. State, 37 Ala. 469.

"The burden of proving the witness to be an accomplice is, of course, upon

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