Fuller v. State
| Decision Date | 23 April 1957 |
| Docket Number | 1 Div. 728 |
| Citation | 94 So.2d 788,39 Ala.App. 90 |
| Court | Alabama Court of Appeals |
| Parties | Eugene FULLER v. STATE. |
W. C. Taylor, Mobile, for appellant.
John Patterson, Atty. Gen., and Robt. G. Kilgore, Jr., Astt. Atty. Gen., for the State.
Appellant was charged by indictment for a violation of Title 14, Section 106, Code 1940. He was tried by the court without a jury, was convicted and sentenced to the penitentiary for a term of two years.
The only evidence offered by the State was the testimony of the prosecuting witness, William Marino, who testified that on January 14, 1954, defendant came to his home between six and seven o'clock in the evening and witness left with defendant in his automobile to help him get some logs for which he was to be paid by defendant. After they had driven for some distance, defendant parked the car and perpetrated an unnatural sex act on witness and then forced witness to commit an unnatural act.
Defendant, as a witness in his own behalf, denied any participation in the acts described by Marino. He testified that he spent the intervening time from 6:15 P.M., until about 9:15 on the evening in question at various places, which he identified.
Appellant argues that the witness Marino is an accomplice whose testimony is not corroborated.
Section 307, Title 15, Code 1940, provides:
'A conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.'
The burden of proving the witness to be an accomplice is upon defendant. Horn v. State, 15 Ala.App. 213, 72 So. 768; Snowden v. State, 27 Ala.App. 14, 165 So. 410.
Our courts hold that on a charge of incest or carnal knowledge where the act has been committed by force the victim is not an accomplice. Newton v. State, 32 Ala.App. 640, 28 So.2d 353; Noble v. State, 253 Ala. 519, 45 So.2d 857.
In 81 C.J.S. Sodomy § 5, page 378, it is said: '* * * it has been held that where the pathic is a willing participant or accomplice in the commission of sodomy, a conviction may not properly be based on his uncorroborated testimony, but that where he is an unwilling victim his testimony does not require corroboration, and will alone support a conviction if clear and convicting in character.'
In Underhill's Criminal Evidence, Fourth Edition, Section 602, at page 1175, it is said: ...
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Andrews v. State
...Code of Ala. 1975. If one is forced to commit an act of this nature, he is not to be considered an accomplice. Fuller v. State, 39 Ala.App. 90, 94 So.2d 788 (1957); Mahone v. State, 44 Ala.App. 372, 209 So.2d 435 (1968). The burden of proving the witness to be an accomplice is upon defendan......
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Alldredge v. State
...of probabilities is, indeed, an awesome responsibility for jurors. In Blocker, supra, we said: '* * * We consider Fuller v. State, 39 Ala.App. 90, 94 So.2d 788, states the rule as to corroboration which should govern 'Here, too, the defense presented no evidence to displace the presumption ......
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LaBryer v. State
...that 'if one is forced to commit an act of this kind, he or she is not an accomplice.' This direction is supported by Fuller v. State, 39 Ala.App. 90, 94 So.2d 788.' In felonies the teestimony of an accomplice requires corroboration. Code 1940, T. 15, § 307, ' § 307. A conviction of felony ......
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Williams v. State, 1 Div. 179
...we held, at 1175: "If one is forced to commit an act of [sodomy], he is not to be considered an accomplice." Cf. Fuller v. State, 39 Ala.App. 90, 94 So.2d 788 (1957); Mahone v. State, 44 Ala.App. 372, 209 So.2d 435 LaBryer and Andrews, supra, say that whether a sodomy victim is an accomplic......