DeSilvey v. State

• Decision Date: 16 December 1943
• Docket Number: 1 Div. 206.
• Citation: DeSilvey v. State, 245 Ala. 163, 16 So.2d 183 (Ala. 1943)
• Parties: DESILVEY v. STATE.
• Court: Alabama Supreme Court

16 So.2d 183

245 Ala. 163

DESILVEY v. STATE.

1 Div. 206.

Supreme Court of Alabama

December 16, 1943

Rehearing Denied Jan. 13, 1944.

H E. Smith, of Bay Minette, and W. C. Taylor, of Mobile, for appellant.

Wm N. McQueen, Acting Atty. Gen., and John O. Harris, Asst Atty. Gen, for the State.

GARDNER, Chief Justice.

The appeal is from a conviction of murder in the first degree with infliction of the death penalty.

Defendant is charged with the murder of one Ruby Sims, who had been informally adopted by the defendant and his wife (a childless couple) as a member of the family when she was something over nine years of age.At the time of this alleged crime she was fourteen.Defendant's conviction rests wholly upon circumstantial evidence.

Of course, in every criminal prosecution the burden is on the State to prove beyond a reasonable doubt the crime charged has in fact been committed and that the accused is the person who committed it.It is well settled that circumstantial evidence may afford satisfactory proof of the corpus delicti.Winslow v. State,76 Ala. 42.

True the Court must first be convinced, at least prima facie, that an offense has been committed before it will consider who perpetrated the crime.As pointed out, however, in Ducett v. State,186 Ala. 34, 65 So. 351, this does not mean that the fact that a crime has been committed should be shown by evidence wholly independent of the relation of the accused to the offense charged.The evidence that defendant committed the crime may be so inextricably blended with proof of the corpus delicti as to make a separation impossible.As to whether or not a prima facie case of the corpus delicti has been made to appear depends, of course, upon the facts of each particular case.

Defendant, a veteran of World War I, while overseas in 1920 met and married a Belgian woman, who is now known as Lucy Desilvey.She is uneducated and unable to read or write English.They came to this country, living at different times in Biloxi, Mississippi, and Mobile, Alabama.They adopted a girl when quite small named Theresa.Theresa is grown and married, but was a member of the family, living with defendant and his wife and Ruby Sims at the time here involved.

As a motive for the crime, it may be here added that, while in Mississippi, Ruby had charged the defendant with the commission on her of the crime against nature, and he had been indicted for that offense.Defendant had stated that if the two girls were out of the State of Mississippi, the charge against him would be dropped.Of course, it is clear enough that this was competent evidence to show motive.Hodge v. State,97 Ala. 37, 12 So. 164, 38 Am.St.Rep. 145.

In April, 1942, defendant with his wife and a little boy drove his car from Biloxi, Mississippi, to Mobile where Ruby and Theresa joined them.He then drove to the hotel at Bay Minette, and left all there except Ruby.He left the hotel about 8 a. m. in the car with Ruby, ostensibly to carry her to the home of one Clara Booth, who lived at Huxford in Escambia County, and was to return and carry the others to the home of his niece, Lillian Colbert.He did return in a few hours, and stated that he first had motor trouble and later, while delayed with a flat tire, Ruby hailed a passing truck and went off on it.Later the same day (about noon) the members of the party went to Lillian Colbert's.We may add in this connection that the testimony of Clara Booth is to be interpreted as showing that she did not anticipate any such visit; that Ruby had never visited her before, nor had the defendant been there with her; and they did not come to her house on that day.At Lillian Colbert's defendant inquired if Ruby had been there.

Lillian Colbert reported Ruby's disappearance shortly after this visit.No inquiry appears to have been made of Clara Booth, either by the defendant or anyone else.The only testimony tending to show Ruby has since been seen or heard from is that of the defendant himself, who states he thought he saw her on a street car with a soldier in New Orleans.He claimed, also, to have reported her disappearance to the Chief of Police of Mobile, or some authority there without result.His testimony is further to the effect that Ruby had run away from their home on two other occasions.On the same day of Ruby's disappearance and the defendant's visit to Lillian Colbert's he stated to the two girls, in the presence of Lillian Colbert, that if Ruby came back, there were her clothes (which he had in a pasteboard box), and if she didn't come back, the girls could divide them between themselves.

Late in November, 1942, following Ruby's disappearance the previous April, one Kilcrease, while out hunting in the woods, found a skeleton of a human being off some distance from a very dim road which led to the edge of a swamp, and in the underbrush.He found the skull, rib, leg, and pelvis bones; a white shoe with open toe; a part of a green coat; the pocket of a red sweater; and some woman's hair fixed in a hoop-like curl, with bobby pins still intact.The hair was brown, but the evidence is that it was slightly darker than Ruby's hair.There were two parts of cloth large enough to indicate they formed a part of a green coat.When Ruby left the hotel at Bay Minette with the defendant, ostensibly to go to Clara Booth's, she wore a green coat which corresponded with the cloth found with this skeleton, and a red sweater which bore much correspondence to the pocket of a red sweater found at the same place.She also had on white shoes open at the toe.A black shoe belonging to Ruby was in the box of clothes defendant brought to Lillian Colbert's, and this shoe was offered in evidence by the State for a comparison by the jury with the shoe found at the place where the human bones were located.

Shortly after the discovery of this skeleton and these articles, a search was begun by the Sheriff's office for the defendant; and in the early part of December he was arrested in Ogden, Utah, a little over two thousand miles away.Being brought back to Baldwin County, he told the officer that he had not been in Baldwin County for a period of 18 months.While the defendant insists that he went to Ogden as a mere change of work, yet we think the jury could well infer and consider this testimony as evidence of flight.Pruitt v. State,232 Ala. 421, 168 So. 149.And after his incarceration in the Baldwin County jail he made his escape, but was promptly recaptured.This, too, was of course competent proof for the jury's consideration on the question of flight.Jones v. State,174 Ala. 85, 57 So. 36.

The State offered the testimony of one Nelson Grubbs, who has been in the employ of the State of Alabama as a toxicologist with headquarters at Auburn for a period of four and a half years.He had studied under a number of those engaged in that character of work, and has made many investigations of death and as a part of his training he made a study of the human anatomy.He was readily able to discern that the skeleton, of course, was that of a human being, and he testified to the approximate height of the person; and from the size of the skull and underjaw and the bones, reached the conclusion that it was the skeleton of a young person, though he was unable to fix any definite age.C...