Gandy v. State
| Decision Date | 11 May 1926 |
| Docket Number | 8 Div. 426 |
| Citation | 21 Ala.App. 384,108 So. 656 |
| Parties | GANDY et al. v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.
Ernest Gandy and Obey Tucker were convicted of burglary and grand larceny, and they appeal. Reversed and remanded.
Bradshaw & Barnett, of Florence, for appellants.
Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen for the State.
The first count of the indictment charged burglary. Count 2 charged grand larceny. The alleged stolen property is specified in the second count as two automobile tires, of the value of $9.48 each; and about $11.85 lawful money of the United States, etc.
The indictment is against four defendants. We gather from the record that one of said parties has never been apprehended that the defendant Odell Brown, named in the indictment interposed a plea of guilty, as charged therein upon his arraignment; that the remaining two defendants, appellants here, were jointly tried and convicted, and that each of them appealed to this court.
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, and the statute expressly provides that such corroborative evidence is not sufficient, if it merely shows the commission of the offense or the circumstances thereof. Code 1923, § 5635.
As to the appellant Obey Tucker there was manifest error in refusing the general affirmative charge requested in writing in his behalf. The only evidence in the record tending in the least to afford an inference of Tucker's complicity in the offense complained of was that given by the self-confessed thief, Odell Brown, and Brown's testimony in this respect was vague and uncertain. Brown testified, among other things:
Brown also testified that On cross-examination Brown stated:
Aside from the above-quoted testimony given by the accomplice Brown, there is no evidence in this record to connect appellant Tucker with the commission of the offense--nothing tending in any manner to corroborate Brown's evidence--and his (Brown's) every statement so far as it related to Tucker was emphatically repudiated and denied by Tucker. Tucker should have been discharged upon the trial of this case.
The injured party, J.J. Veid, testified only as to the substantive fact that his laundry had been burglarized, and that $11.85 in cash, and two automobile tires, valued at $9.48 each, were stolen. He expressly stated he knew of no fact to connect either of the parties charged, or any one else, with the crime. The state's case rested solely upon the testimony of Odell Brown, who confessed the crime, and who the testimony shows, without conflict or dispute, to be of bad character, and that of Brown's father and mother, Dave Brown and his wife, and each of them manifested ill will, hatred, and prejudice toward appellant Gandy.
The exceptions reserved to the court's rulings upon the testimony of state witness Veid are without merit. In cases of larceny it is always incumbent upon the state to prove the value of the alleged stolen property. The value may be averred and proven in the aggregate; that is, the collective value may be averred and proven. The safer and better practice, however, is to aver the value of each article and to prove the value as averred, for, if the jury do not find a general verdict of the entire charge, but do return a verdict of guilty as to the larceny of one or more of the alleged stolen articles, by not specifically alleging and proving the value, difficulties in pronouncing judgment in many cases would necessarily arise. Here, however, as stated, the alleged stolen property and its value was separately and distinctly stated, and the proof properly met the averments in the second count of the indictment. The question propounded to witness Veid was subject to the objection made, for the reason that each separate article and its respective value was properly alleged in the indictment, and the question to witness Veid related to the aggregate value. The question was badly worded also, as follows:
"Now what was the total value the total amount of the $11.45 in cash that was taken and the tires?"
The court overruled the objection of defendant to above question. The objection should have been sustained, but...
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United States v. Toner
...F. 98, indictment for conspiracy court permitted to go out with jury though it contained pleas of other defendants. See Gandy v. State, 21 Ala. App. 384, 108 So. 656, cited in 22 C.J.S., Criminal Law, § 793, page 1344, and Commonwealth v. Dennery, 259 Pa. 223 at page 231, 102 A. 874; O'Rear......
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Doss v. State
... ... minds as to both Hughes and Tidwell being accomplices under ... the law. Alexander v. State, 20 Ala. App. 432, 102 ... So. 597; Boles v. State, 21 Ala. App. 356, 108 So ... 350; Davidson v. State, 33 Ala. 350; Patterson ... v. State, 21 Ala. App. 368, 108 So. 350; Gandy v ... State, 21 Ala. App. 384, 108 So. 656 ... The law ... of this state declares that a conviction for a felony cannot ... be had on the testimony of an accomplice, unless the ... testimony of the accomplice is corroborated by other evidence ... tending to connect the defendant ... ...
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State v. Hibberd
... ... have been stolen, and avers their value in the aggregate, ... proof of the ownership of some of the articles as alleged, ... and that such articles are of sufficient value to warrant the ... verdict and judgment, is sufficient. See Gandy et al. v ... State, 21 Ala. App. 384, 108 So. 656; State v ... Thomas (Me.) 136 A. 726. We subscribe to the rule ... announced in the foregoing cases ... If our ... view is correct, the court did not err in instructing the ... jury by instructions ... ...
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