Howard v. State

• Decision Date: 30 June 1909
• Citation: 50 So. 954,165 Ala. 18
• Parties: HOWARD v. STATE.
• Court: Alabama Supreme Court

50 So. 954

165 Ala. 18

HOWARD v. STATE.

Supreme Court of Alabama

June 30, 1909

Response to Application for Rehearing December 16, 1909.

Appeal from Circuit Court, Hale County; B. M. Miller, Judge.

Ed Howard was convicted of murder and he appeals. Affirmed.

The facts sufficiently appear in the opinion of the court. The following charges were refused to the defendant: (2) "The court charges the jury that the only evidence introduced by the state to corroborate the testimony of Charley Taylor is evidence tending to show that defendant Charley Taylor, and Shad Williams agreed to kill R. W. Drake at Shad Williams' house, and if they have a reasonable doubt as to truth or falsity of that testimony they must acquit the defendant." (3) "The court charges the jury that if they have a reasonable doubt as to the truth or falsity of the evidence of the women, Etta Ward and Emma Williams, who testified in this case, then they must acquit the defendant." (4) General affirmative charge. (5) "Unless the jury believe from the evidence beyond a reasonable doubt that before the murder of R. W. Drake the defendant, Ed Howard, and Joe McDaniel and Charley agreed in the house of Shad Williams, on Monday before the murder of R W. Drake, to kill R. W. Drake, then the jury must acquit the defendant." (6) "The court charges the jury that unless each of them is satisfied of the defendant's guilt beyond a reasonable doubt, they must acquit the defendant." (7) "The court charges the jury that the state has failed to corroborate the testimony of Charley Taylor in the manner required by law, and that they must acquit the defendant." (8) "The court charges the jury that the law will not permit the conviction of the defendant charged with a felony upon the uncorroborated evidence of an accomplice, and that corroborating evidence is such evidence as tends to connect the defendant with the commission of the offense, and if it merely shows the commission of the offense, or the circumstances thereof, it is not sufficient; and the court further charges the jury that the only evidence which has been introduced by the state as corroborative of the evidence of Charley Taylor, the accomplice, is the evidence of the conspiracy alleged to have been formed between the defendant, Charley Taylor, and others to murder R. W. Drake, and unless the jury is satisfied from the evidence beyond a reasonable doubt, independent of anything that has been testified to by Charley Taylor, that the defendant, Charley Taylor, and others, did form a conspiracy to murder R. W. Drake, then they must acquit the defendant."

A. M Tunstall and E. S. Jack, for appellant.

Alexander M. Garber, Atty. Gen., and Thomas W. Martin, Asst. Atty. Gen., for the State.

MAYFIELD J.

The defendant was indicted and convicted of murder in the first degree, and the death sentence was imposed by the jury. The material facts, as stated by counsel for appellant, and necessary to an understanding of the case and of the questions raised on appeal, are as follows:

On the night of November 24, 1908, R. W. Drake, while asleep in his bed at his home, in Laneville, Hale county, Ala., was hit on the head with some heavy instrument and killed. His adjacent store was burglarized, and the store and residence set on fire; the fire being extinguished before gaining much headway. On the next day one Charley Taylor, suspected of the crime, was apprehended, and confessed his guilt, implicating Ed Howard and Shad Williams as his accomplices in the crime. A day or two later he implicated Joe McDaniels as one of the accomplices. All four of the parties were negroes, and the deceased, R. W. Drake, was a white man, formerly sheriff of Hale county. Shad Williams, Ed Howard, Joe McDaniels, and Charley Taylor were thereupon arrested and confined in the Hale county jail.

On the 30th day of November, the judge of the Fourth circuit, Hon. B. M. Miller, made an order for a special term of the court, to be begun on the said 30th day of November (see pages 1-3 of the record), and on that day proceeded to draw a grand jury, and drew a petit jury. On December 2d the grand jury was duly impaneled and organized, and on the same day said grand jury returned an indictment, charging this defendant, Ed Howard, with murder in the first degree (see pages 6-13 of record). On the same day this appellant was brought into court, and being without counsel, and without the ability to employ counsel, the court appointed A. M. Tunstall and E. S. Jack to represent him. The court thereupon set the 5th day of December to try this appellant on said indictment.

On the 5th day of December, the said case against this appellant was called for trial, and said appellant moved for a change of venue (see page 20 et seq. of record). In this sworn application it is set out that Mr. Drake, the deceased, was a white man of much prominence and popularity in the county; that the appellant was a negro boy; that Charley Taylor had confessed his guilt, and implicated the appellant; that articles assuming the guilt of this appellant and that of the others accused by Charley Taylor, appeared in the Greensboro newspapers, particularly the Watchman, a paper edited by the chairman of the county Democratic executive committee, a man in whom the people of Hale county had great confidence, and whose views, as expressed in said paper, extracts from which are made a part of the motion, assuming the guilt of this appellant, produced a strong conviction upon the public mind that this appellant was in fact guilty; that the jurors who were summoned as venire in this case had been present in the courthouse during the trial and at the conviction of Shad Williams and Joe McDaniels, also charged with the murder of Mr. Drake; that much feeling was manifested in said courtroom when the jury imposed only a life sentence on said Shad Williams, and that so marked was the public disapproval of anything less than a death verdict that after the verdict the sheriff threw an armed guard around the jail and the courthouse to prevent a lynching of Shad Williams and others charged with the murder of R. W. Drake; that, shortly after the arrest of this appellant and the others charged with the said murder, the feeling in Hale county against said parties was so strong that under the order of the Governor of Alabama the said parties so charged with or suspected of said murder were carried by a special train, on the night of November 28th, to Birmingham, to prevent any attempt to lynch them, and were kept in the jail at Birmingham until December 2d, the day they were arraigned on said indictment; and that the murder of Mr. Drake aroused the deepest resentment and created the greatest excitement among the people of Hale county. On the hearing of said motion, the allegations of which were duly verified by said appellant, the state offered a joint ex parte affidavit of nine men (see page 37 of record), which set out that the parties signing the same were acquainted with the public sentiment of Hale county, that the defendant could get a fair trial, that there had not been any danger of mob violence, and that there had been "no change of sentiment against this defendant" since the Shad Williams trial. The court overruled the motion, and the appellant duly excepted.

On the trial of the case the state examined Turner Cash, Robert Campbell, E. E. Gewin, Charley Taylor, Etta Ward, Emma Williams, and Pick Bird. The testimony of none of these witnesses, except Charley Taylor, Emma Williams, and Etta Ward, tended to implicate appellant. Charley Taylor swore positively that he, Shad Williams, Joe McDaniels, and appellant plotted and accomplished the murder of Mr. Drake. The woman Emma Williams, the wife of one of the defendants Shad Williams, testified that ...