Davis v. State
| Decision Date | 06 March 1969 |
| Docket Number | 8 Div. 312 |
| Citation | 220 So.2d 860,283 Ala. 686 |
| Parties | John Henry DAVIS v. STATE. |
| Court | Alabama Supreme Court |
H. Thomas Armstrong, Jr., and A. Allen Lee, Scottsboro, for petitioner.
MacDonald Gallion, Atty.Gen., and Walter S. Turner, Asst. Atty. Gen., opposed.
The facts set forth in the opinion of the Court of Appeals show that Moore, who Davis insists was an accomplice, informed Davis that money was kept in the burglarized filling station during the time when he formerly worked there. Moore accompanied Davis to the filling station on the night in question. He saw Davis pry open a window to the filling station. After Davis' entry into the filling station, he told Moore to come on in "before the cops come." Moore thereupon entered the filling station. After Davis had rifled the cash register, he told Moore to "come on" and according to Moore "they left out." The next day Moore accepted $15.00 from Davis as his part of the proceeds obtained in the burglary.
After setting forth the facts tending to show the joint complicity of Moore and Davis in the burglary, the Court of Appeals states: "Only the possession of the paper sack with coins and the request for silence is of any weight in our review * * * " i.e., was the testimony of the witness Moore to comply with the provisions of Section 307, Title 15, Code of Alabama 1940.
With the above quoted observation of the Court of Appeals, we are in full accord.
The opinion of the Court of Appeals then discusses at length the probative value of the showing of the bare possession of money by an accused, without more, and apparently concludes that the evidence of Moore's possession of money in a paper sack the day following the burglary, standing alone, was insufficient to connect Davis with the burglary. With this conclusion, we are likewise in accord. It would seem that these conclusions by the Court of Appeals would have necessitated a reversal of the judgment, since Moore's testimony was the only remaining evidence.
Despite the above conclusions, the Court of Appeals then proceeds to analyze the relationship between Moore and Davis and reaches the conclusion that Moore was merely passively present at the burglary and was a hindrance rather than a help. Certainly, it could be reasonably argued that Moore's informing Davis that money had been kept in the filling station, and his entry into the filling station at Davis' instruction, were positive acts, the entry being for the purpose of preventing detection by the police.
Be that as it may, the opinion of the Court of Appeals gave little weight to the fact that Moore was jointly indicted with Davis for the same burglary, a severance for trial being therafter granted.
The Court of Appeals' opinion sets forth:
44 Ala.App. 684, 220 So.2d 852.
In Latham the alleged accomplice though indicted for the same offense as the defendant, had not pleaded guilty, but on the other hand, as the court pointed out, had denied any participation in the offense.
In Gandy v. State, 21 Ala.App. 384, 108 So. 656, a witness who was co-indicted with the appellant, had entered a plea of guilty to the indictment. In holding that under these circumstances the witness was an accomplice, the Court of Appeals wrote:
"As stated, the accused, Odell Brown, confessed his guilt, and was so adjudged upon his plea of guilty. He was therefore an accomplice in contemplation of law, and, the charge here being a felony, no conviction of either of these appellants can be had upon his (Brown's testimony, unless his evidence is corroborated by other evidence tending to connect these defendants with the commission of the offense * * * ". (Italics ours.)
To like effect see Boles v. State, 21 Ala.App. 356, 108 So. 350 (admitted accomplice); Patterson v. State, 21 Ala.App. 368, 108 So. 350, "
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