Gandy v. State, 6 Div. 697.

• Decision Date: 25 June 1940
• Docket Number: 6 Div. 697.
• Citation: 198 So. 265,29 Ala.App. 485
• Parties: GANDY v. STATE.
• Court: Alabama Court of Appeals

198 So. 265

29 Ala.App. 485

GANDY v. STATE.

6 Div. 697.

Court of Appeals of Alabama

June 25, 1940

Rehearing Denied Aug. 6, 1940.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

James Gandy was convicted of rape, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Gandy v. State, 198 So 267.

William Conway, of Birmingham, for appellant.

Thos S. Lawson, Atty Gen., and John J. Haynes, Asst. Atty. Gen., for the State.

BRICKEN, Presiding Judge.

Upon an indictment which charged the offense of rape, this appellant was tried and convicted as charged, and his punishment was fixed at fifteen years' imprisonment in the penitentiary.

There was no conflict in the testimony on the trial of this case in the court below. The defendant offered no testimony. Upon this appeal appellant relies mainly upon exceptions reserved to the rulings of the court on admission of the testimony and the refusal of certain special written charges to defendant. Other questions are also insisted upon.

The theory of the State upon the trial of this case in the court below, made known to the court, was, that a conspiracy to commit the offense complained of was entered into by the appellant, and two others, his companions on the occasion in question; and we find from the undisputed testimony this position was well taken and fully sustained. The law as to this is, whether in fact the violence was done by one, or more than one; whether they went there with a common purpose to do violence, or to see it done, or to aid or encourage the doing of it, or to lend assistance should it become necessary; each and all of these were proper inquiries for the jury, and the testimony justified their submission to that body. So, if, being present with or without preconcert, they entered into a common illegal purpose, and one or more of them did the deed of violence, and the others were present, aiding, abetting, encouraging, sanctioning, or giving countenance to the unlawful act, or ready to lend assistance if it should become necessary, and the jury, by the proper measure of proof, find either one of these categories to be true, then if the actor or actors be found guilty, the others are also guilty. Hence it is that, when there is testimony, sufficient in the opinion of the presiding judge to show a prima facie case of conspiracy, or community of purpose, then the acts of each may be proved on the trial against all, or any number of the alleged conspirators; and if the jury find that there was such conspiracy, or common purpose, then the act of each participant, done or sanctioned by one in aid of the common purpose, becomes the act of all in its criminating effect.

In the case of Hunter v. State, 112 Ala. 77, 21 So. 65, 1st Headnote, which is fully sustained by the opinion, reads "In a criminal case, the acts and declarations of another person than defendant, in the absence of the defendant, are admissible in evidence against the defendant, when there has been introduced evidence, direct or circumstantial, prima facie sufficient to establish the existence of a conspiracy between the defendant and such other person to commit the offense charged, and such acts and...