Davis v. State
| Citation | 220 So.2d 852,44 Ala.App. 684 |
| Decision Date | 28 May 1968 |
| Docket Number | 8 Div. 115 |
| Parties | JOHN HENRY DAVIS v. STATE. |
| Court | Alabama Court of Appeals |
Weeks & Weeks, Scottsboro, for appellant.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
This is an appeal from a conviction of second degree burglary on which the appellant was sentenced to the penitentiary for two years.
On the night of September 20--21, 1966, some one pried open a window in the washrack in Mr. E. C. Dawson's filling station in Scottsboro. Coins for $25.50, bills for $40.00 and two tires were gone.
Eddie Lee Moore saw John Henry Davis after dark September 20. Davis asked Moore (who once worked there) if they kept money at Dawson's Sinclair station. Moore stated that they did when he worked there.
Then Moore said he was ready to go home. Davis said, As they got near Moore's home Davis suggested, 'let's go back and have a look at the Sinclair.'
To this Moore demurred but Davis insisted, so in the end Moore went with him. This was at about eleven at night.
Davis went 'over on the back of the service station where the J. C. Jacobs Bank is * * * at the washroom on the back window and he pulled a screw driver out of his pants and undone--broke a latch on the window.' After Davis went in, he told Moore 'to come on in before the cop came.' This Moore did.
Inside Moore stopped at the water fountain and Davis at the cash register getting money. Moore told him 'to come on.'
After Davis put the money in his pocket the two 'left out,' Davis having closed the window. They went across Scott Street; 'the Police came down the road and we run into a field.' This was across U.S. Highway 72.
The police shone a spotlight about the field but did not see either Davis or Moore.
Moore was at school the next day. Davis came there and had Moore called out of class, handed him 'a ten and five ones.'
Moore testified that simultaneously with the delivery of the fifteen dollars Davis told him, 'Here is your part of the money and I will see you later.'
State's witness, Ida Ruth McCamie, remembered 'when the D. & H Sinclair Service Station was broken into.' She saw Davis at her house 'after it happened.' James Calloway was already there when Earl Evans came in there with Davis.
Davis 'had some money.' Calloway had a newspaper which had an account of the burglary. Calloway asked Ida Ruth if she had heard about it. To which she replied 'Yeah * * * I had heard about it.' Her testimony continued, 'John Henry (Davis) came over there and took the paper out of my hands and laughed at it.'
On the same occasion the transcript continues:
'A He paid me $2.00 he owed me. That was the time he had the money when he came in.
'Q Was that the same day as the newspaper?
'A Yes, sir.
'Q And what did he say about the money?
'A He came in with the money and I said, 'Oh, man, where did you get so much money?'
'Q What did he have the money in?
'Q Was it anything else--was it nickels, pennies, dimes or quarters or paper money or what?
'A Quarters change and that is all I saw.
'Q You have any idea how much he had in there?
'A No, sir, I don't.
'Q What was he doing with it?
'A He just run his hand down the sack and he owed me $2.00 and he paid me in quarters.
'Q Did he make any request of you about the money?
'A No, sir, he did not.
'Q Now, to refresh your memory when I talked to you out in the witness room he said, 'Oh, lord, don't tell anybody about this.'
'A Yes, sir.
'Q He said what now?
'A That is when I asked him what are you doing with so much money and he said, 'Oh, lord, don't you say anything about this,' and that is all he said about it.
A policeman testified that he saw two boys on Scott Street September 20, 1966, about 11:30 P.M. They started running across a vacant lot. The policeman and his partner searched there in vain.
The only description this witness gave was that one boy was 'a little bit taller than the other one and one * * * had on a white shirt and the other * * * a light colored shirt.' On cross the officer could not say whether the boys 'were colored or white.'
Davis took the stand in his own behalf. He denied breaking and entering; denied giving Moore any money; and that he had a sack of money when he paid Ida Ruth McCamie $2.00.
This latter payment he testified was to settle an old whiskey bill which he paid from his earnings at Mack Finley's Cafe. As far as the night of September 20, 1966, he testified that he stayed at the Morton Hotel on Ninth Street in Chattanooga.
If Moore is an accomplice (i.e., whether called principal, accessory before or to the fact) then this cause must be reversed because Moore's testimony has not been corroborated under Code 1940, T. 15, § 307, which reads:
In Sorrell v. State, 249 Ala. 292, 31 So.2d 82, it was laid down that if the accomplice's testimony is disregarded, then the remainder is weighed. Sorrell lays down that in order to connect the defendant with the crime the corroboration must be of
a) Fact (or circumstance) of substantive character;
b) Fact (or circumstance) tending to prove guilt;
c) Fact (or circumstance) which is unequivocal (and certain) in character (i.e., inconsistent with the innocence of accused); and
d) Fact (or circumstance) tending legitimately to connect defendant with crime (i.e., that which raises more than a mere suspicion of guilt).
Also, opinion evidence alone to corroborate, it would seem from Sorrell, must concern itself with some object or fact (e.g., an opinion, standing by itself, of a trait or likelihood of human conduct would not be of substantive character). Evans v. State, 42 Ala.App. 587, 172 So.2d 796; Berry v. State, 43 Ala.App. 60, 179 So.2d 428; Cooper v. State, 43 Ala.App. 385, 191 So.2d 224; King v. State, 44 Ala.App. ---, 203 So.2d 466; McElroy, Law of Evidence in Alabama (2d Ed.), § 300.01, particularly subdiv. (5), Vol. 3, p. 118.
We find in the evidence, aside from Moore's testimony, the following:
a) A policeman saw two unidentified (other than comparatively by height and color of shirts) boys;
b) Davis paid Ida Ruth McCamie a $2.00 debt;
c) He had a paper sack with an unspecified amount of coins therein, and asked Ida Ruth McCamie not to talk about his having the money;
d) He laughed at the newspaper account of the burglary; and
e) He--after the State had rested and the defense's motion to exclude had been overruled--testified and gave an uncorroborated defense of alibi.
Only the possession of the paper sack with coins and the request for silence is of any weight in our review.
Sudden appearance of wealth often is a circumstance relevant to its acquisition. Thus, the 'net worth' and 'bank account and disbursements' methods are recognized snares for income tax exaders. Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192; Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150; United States v. Calderon, 348 U.S. 160, 75 S.Ct. 186, 99 L.Ed. 202; Friedberg v. United States, 348 U.S. 142, 75 S.Ct. 138, 99 L.Ed. 188.
The use or possession of property to establish an inference of its source is a troublesome problem of cause and effect. In medieval days jurors were witnesses as well as triers of fact. Hence, they knew the poor as well as the rich in their vicinage. Today, however much jurors do, as a matter of fact, draw on their outside knowledge, the law nevertheless insists that they must regard only the evidence and its reasonable implications.
Judge McElroy has well outlined the reaches of this question in his Law of Evidence in Alabama (2d Ed.), at § 50.01, captioned 'TRACES: POSSESSION OF MONEY AS EVIDENCE OF ITS ACQUISITION FROM A SPECIFIC SOURCE.'
The first two paragraphs of that section are a well balanced summary:
'But if facts of the amount, denomination, and other circumstances of such possession, reasonably indicate in the circumstances of the case that the money was acquired from a relevant particular source, evidence of such facts is admissible.'
Since medieval days the incidence of barter of goods or services for other goods or services has declined until under the Industrial Revolution and its aftermath barter is a rarity. The use of money and credit in turn has increased many fold.
United States coins within the same legal tender range, e.g., 25cents pieces or ...
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