Horn v. State

• Decision Date: 07 September 1916
• Docket Number: 5 Div. 213
• Parties: HORN v. STATE.
• Court: Alabama Court of Appeals

72 So. 768

15 Ala.App. 213

HORN v. STATE.

5 Div. 213

Court of Appeals of Alabama

September 7, 1916

Appeal from Law and Equity Court, Lee County; Lum Duke, Judge.

Johnnie Horn was convicted of burglary, and he appeals. Affirmed.

Barnes & Brewer, of Opelika, for appellant.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty Gen., for the State.

EVANS J.

Appellant was jointly indicted with two other boys, Bud Ware and Crawford Long, charged with burglary. A severance was had and Bud Ware, on behalf of the state, testified that he and defendant on the night of the crime had been invited by Crawford Long to accompany him on a jaunt or excursion that he, the said Crawford Long, intended to make. On being pressed by the other boys for the why and wherefore of the excursion, Long merely replied, "Come and go with me and I will let you know when we get there." According to Bud Ware, nothing further was vouchsafed, and neither he nor defendant had the slightest intimation or any knowledge of the purpose of the trip until they had proceeded some three or four miles to a grove at or near the farm of one Alfonzo Martin, and at this point Long explained that said Martin owed him some money which he couldn't collect, and he intended to go into Martin's crib and appropriate his bicycle, which was kept there. Defendant halted in the grove and there remained while Long and Ware proceeded to the crib. Long broke into the crib, secured the bicycle, and both boys rejoined defendant, and the trio returned home. When nearing home, Long decided to conceal the bicycle in the loft of a barn, and asked defendant to give him a lift with the bicycle, which he did. Ware further testified that when apprised of the purpose of the trip, he remonstrated with Long, but notwithstanding, accompanied him to the crib and stood and watched Long break and enter the crib, specifically disclaiming, however, any participation or complicity in the crime, and denied that he was acting as a lookout. This, in short, comprised the state's testimony, save that the owner of the bicycle, Alfonzo Martin, testified that his crib had been broken open during the night and his bicycle stolen and that some three weeks thereafter he had discovered it in Long's possession, and that it had then been painted a different color. Defendant disclaimed any knowledge of the crime, and denied having gone with Ware and Long to Martin's farm. The father of Crawford Long testified that the three boys left his house about 8:45 p.m. on the night of the crime and "went up the road together toward Alfonzo Martin's."

In this state of the evidence, the question arises: Did the trial court commit error (1) in refusing to give the general affirmative charge (being requested thereunto), and (2) in not setting the verdict aside and granting a new trial, the trial having been had subsequent to the amendatory act (Acts 1915, p. 722), authorizing defendant to appeal in criminal cases from a motion for a new trial?

Where there is doubt whether a witness is in fact an accomplice and the testimony is susceptible of different inferences on that point, such question is for the jury, and not the court. It is not enough, moreover, that the jury be left in doubt on the subject. They must be reasonably convinced that the witness was an accomplice before the statute (Code 1907, § 7897), requiring corroboration, comes into play. When it does come into play, the statute merely requires that there shall be evidence aliunde "tending to connect defendant...