Jones v. State

• Decision Date: 14 July 1911
• Citation: 174 Ala. 53,57 So. 31
• Parties: JONES v. STATE.
• Court: Alabama Supreme Court

57 So. 31

174 Ala. 53

JONES v. STATE.

Supreme Court of Alabama

July 14, 1911

Rehearing Denied Dec. 21, 1911.

Appeal from Circuit Court, Shelby County; John Pelham, Judge.

Will Jones was convicted of murder, and he appeals. Affirmed.

Brown Leeper & Lapsley, for appellant.

R. C Brickell, Atty. Gen., and T. H. Seay, Asst. Atty. Gen., for the State.

McCLELLAN J.

The indictment, comprising two counts, charged Roy Cardwell, Will Jones, Jim Jones, and Dock Jones, with the murder of Alonzo Jones. Upon a severance, this defendant (Will Jones) was tried alone.

In the first count, the allegation is that the homicide was committed "by striking him with a rock," and, in the second count, "by striking him with a rock or rocks and by assaulting and beating him."

While there was some evidence that this defendant had in his hand or pocket, a short time before the fatal difficulty, a rock or rocks, there was no evidence that he, at any time, actually struck deceased with a rock or rocks. His guilt of this homicide, under this indictment, must, therefore, depend upon whether he aided or abetted the person who did strike the deceased with a rock or rocks, in causing his death, or whether he so conspired or preconcerted with such person as to render him culpable in consequence of the act of the person who did strike the deceased the fatal blow with the rock or rocks.

The substantive law, applicable to this prosecution--to the determination of the guilt vel non of the accused--has been often declared by this court. These expressions of presently pertinent and controlling principles and rules are quoted, that brevity and accuracy may be better conserved.

By Code 1907, § 6219, it is provided that "all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors."

"When by prearrangement, or on the spur of the moment, two or more persons enter upon a common enterprise or adventure, and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting * * * the active perpetrator in the commission of the offense is a guilty participant, and, in the eye of the law, is equally guilty with the one who does the act. Such community of purpose, or conspiracy, need not be proved by positive testimony. It rarely is so proved. The jury are to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case." Morris v. State, 146 Ala. 66, 88, 41 So. 274, 280--collecting many authorities.

Aid and abet "comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, then that ingredient of the offense is made out." Raiford's Case, 59 Ala. 106; Tally's Case, 102 Ala. 25 et seq., 15 So. 722.

If there is no prearrangement or preconcert, mere presence, with the intent to give aid if necessary, is not aiding or abetting- "unless the principal knew of the presence, with intent to aid, of such person." Tally's Case, supra; Raiford's Case, supra; Morris' Case, supra; 1 Whar. Cr. Law, § 210.

"Conspiracy, or a common purpose to do an unlawful act, need not be shown by positive testimony. Nor need it be shown that there was prearrangement to do the specific wrong complained of." Martin's Case, 89 Ala. 115, 8 So. 23, 18 Am. St. Rep. 91.

"So, if, being present without preconcert," two or more persons "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, or giving countenance to the unlawful act, or ready (with the perpetrator's knowledge of their intent to render assistance to him if necessary--Tally's Case, supra) to lend assistance if it should become necessary, * * * the other or others are as guilty as the actor or actors." Amos's Case, 83 Ala. 1, 4, 3 So. 749, 751 (3 Am. St. Rep. 682).

"To establish a conspiracy, it is not always necessary to show prearrangement to do the particular wrongful act committed. But it is true that, when two or more persons enter upon an unlawful purpose with a common intent to aid or encourage each other in carrying out their common design, they are each responsible, civilly and criminally, for everything which may consequently and proximately result from such unlawful purpose, whether specially contemplated or not." Green's Case, 97 Ala. 59, 12 So. 416, 15 So. 242.

This tragedy occurred a short distance from the scene of a picnic. According to a phase of the testimony, and there was much conflict in it, deceased was, when he received the fatal blow, on his "all fours," with his head forced to the ground. The defendant was upon his back, striking him, on the head and back, with his fists. At this juncture, Roy Cardwell, from a distance of about five feet, threw a rock evidently with great force, at the head of deceased, striking him in the back of the head, and thereby causing his almost immediate death. On the picnic grounds there was a dance platform. Near it ran a spring branch. Deceased and one Connell came to the grounds late in the afternoon. Deceased was drunk. Jim Jones, and his two sons Dock and Will (defendant), as was Roy Cardwell, were there, the first named appearing, from some of the evidence, to have had a part in the management or direction of the occasion. From a phase of the testimony it appears that Jim Jones undertook to restrain his son Dock from responding to a request of deceased for a talk with him. Soon after this, and after deceased and Connell had crossed the branch from the side of it on which Jim Jones was, Jim Jones, some of the testimony went to show, made a hostile remark of a character readily susceptible of the interpretation that it referred to deceased and Connell, and which was capable of being understood as commanding the "boys" to take extreme measures against deceased and Connell if they undertook to recross the branch; to which Dock replied, "I'll do it." Deceased went off with Connell, something like 100 yards, from the picnic grounds. They stopped on the roadside,...