Lancaster v. State

• Decision Date: 17 February 1925
• Docket Number: 6 Div. 490
• Parties: LANCASTER v. STATE.
• Court: Alabama Court of Appeals

106 So. 609

21 Ala.App. 140

LANCASTER v. STATE.

6 Div. 490

Court of Appeals of Alabama

February 17, 1925

Rehearing Denied March 17, 1925

Cause Restored to Rehearing Docket June 30, 1925

Rehearing Denied Oct. 27, 1925

Appeal from Circuit Court, Marion County; Charles P. Almon, Judge.

Robert Lancaster was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Certiorari denied by Supreme Court in Ex parte State (Lancaster v State), 106 So. 617, and Id., 106 So. 618.

A.H. Carmichael, of Tuscumbia, E.B. & K.V. Fite, of Hamilton, Foster, Rice & Foster and Harwood &amp McQueen, all of Tuscaloosa, and L.D. Gray, of Jasper, for appellant.

Harwell G. Davis, Atty. Gen., Horace C. Wilkinson, Sp. Asst. Atty Gen., and W.C. Davis, of Jasper, for the State.

SAMFORD, J.

The evidence in this case establishes the fact that a mob composed of several masked men forced its way into the jail of Walker county after 12 o'clock at night, overpowered the jailer, took from the jail Willie Baird, one of the prisoners, conveyed him by automobile to a lonely road, and there murdered him. The corpus delicti is therefore not involved in a consideration of this appeal.

The murder occurred on the night of January 12, 1921, at a time when the miners of that section of the state were on a strike, and various companies of the National Guard, among which was Company M of Tuscaloosa, Ala., had been ordered by the Governor to duty in the strike region to preserve order and to protect life and property. The area patrolled by Company M was near Jasper in Walker county, and near the scene of the lynching, and it is claimed and charged by the state that the mob committing the crime was composed of members of Company M, some of whom were officers and some privates in the ranks; the defendant being a sergeant. It is not contended, however, that the murder was committed as a result of any military command given by a superior officer. The act clearly showing on its face its own illegality, and want of authority, the order of a superior officer would be of no protection to this defendant, nor to any one engaged in the commission of the crime. 27 Cyc. 507, art. 7.

Even therefore, if the mob was composed of officers and members of Company M, each acted upon his own responsibility in the formation of the conspiracy and the carrying into effect the common purpose to murder, as if there had been no such organization as Company M; the fact of the existence and location of Company M being relevant in this case only as preliminary proof of the grouping of certain men, some of whom may have formed the mob which committed the crime.

After proof of the corpus delicti, the state sought to prove a conspiracy. In making this proof, the evidence takes a wide range. Any fact or circumstance, either direct or circumstantial, tending to establish a concurring agreement to carry into effect a common purpose to commit the crime, is relevant and admissible in evidence. 5 R.C.L. 1088(37). A motive, threats, assembling together at unusual times and places, declaration of purpose, acts in preparation, and, in fact, any act or words of the parties charged, though remote, tending to an understanding of a common purpose to carry out a common design, would be relevant and admissible.

If and when, but not before, the conspiracy is formed, each conspirator is bound by the acts and declarations of his coconspirators done and said in furtherance of the common purpose. Leverett v. State, 18 Ala.App. 578, 93 So. 347; Martin v. State, 89 Ala. 115, 8 So. 23, 18 Am.St.Rep. 91. But declarations made before the formation of the conspiracy or after the consummation of its purpose are not admissible, unless so closely allied with the commission of the crime as to become a part of the res gestae, in which event they are a part of a continuous transaction. Leverett's Case, supra; Martin's Case, supra; 5 R.C.L. 1089(39).

The fact that this defendant and those with whom he is alleged to have conspired were in a company of soldiers comprising a part of the National Guard of the state, and stationed in strike duty near the place where this crime was committed, was relevant as preliminary proof. Such evidence could not and should not be taken as a fact in itself tending to establish the conspiracy. The voluntary service of the citizen soldier is the highest expression of patriotism--the sacrifice of private interest, of time and property, and even of life itself, to maintain the sovereignty of the state. Such service should not be rewarded by the application of a rule that would make the very act of service a circumstance against a defendant in establishing his guilt in the commission of a crime, even though that crime may have been committed by some of the individuals engaged in a similar service. On the other hand, the fact of his being a soldier in the service of the state cannot exempt him from crime or change rules of evidence applicable on a trial.

The first insistence of error is that the court erred in permitting the witness Hartley to testify that on the night of the murder Frank Nolan, a member of the company, came to the supply room where witness was sleeping, woke witness up, and said: "Get up; the boys are ready to go," and witness replied: "I ain't going." Evidence has already been admitted tending to prove a conspiracy between defendant and other parties, including witness, to commit the crime charged, and, under the rule above stated that all of the conspirators are bound by the declarations and acts of coconspirators in furtherance of the common purpose, this declaration and act of Nolan was coincident with and explanatory of a progressing transaction in contradistinction from a narrative only of a past transaction. 2 Wharton Ev. par. 1206. The foregoing rule taken from Wharton's evidence is cited and treated at length in Phoenix Ins. Co. v. Moog, 78 Ala. 284, at page 306, 56 Am.Rep. 31, and cited by appellant in his brief.

Further on in the examination of the witness Hartley, the assistant supply sergeant of Company M testified that he did not stay at the soldiers' barracks the remainder of the day after the discovery of the crime in the morning of Friday, but with Quin and Capt. Lollar went to Jasper to the headquarters of Col. Smith, who was in command of the regiment, and remained over night at headquarters. Afterwards witness went to Tuscaloosa with the company, leaving the company equipment at the camp, and afterwards he and Quin and Capt. Lollar came back through the country. The state was then permitted to prove, over the timely objection and exception of defendant, that witness then "checked up" the company's property, and that all the guns were there, but that: "We were short on clothing and equipment." There is no effort to identify what equipment or clothing were short, or how much of what kind, nor was there any evidence tending to connect this defendant with its loss or destruction. The evidence for the state was that the parties who took Baird from the jail were masked with flour sacks, and dressed in long black overcoats and miners' caps. The evidence tending to connect this defendant with the commission of the crime charged is largely circumstantial and in such cases the testimony of necessity takes a wide range, but, even in this character of evidence, in each fact proven there must be some natural, necessary, or logical connection between them and the inference or result which they are designed to establish. 8 R.C.L. p. 180, par. 172. The rule as stated in Wharton, Crim.Ev. vol. 2, p. 1745, is, where subsequent circumstances are discounted from, and have no obvious relation to, the act charged, they are irrelevant and inadmissible. Whatever of the equipment and clothing of Company M was found to be short or missing, such missing equipment and clothing was not "obviously" related to the act charged in the indictment. The admission of this testimony was error.

Some time after the crime charged had been committed, after Company M had been taken to Tuscaloosa, and then carried in a body under military discipline and in command of Capt. Lollar, the commanding officer of the company, to be examined by the Special Attorney General in Birmingham, the state was permitted to prove, over the objection and exception of defendant, that, while in Birmingham, and just before the members of the company were carried before the Special Attorney General to be examined touching their knowledge of the crime, Capt. Lollar, who was then in command of the company of which defendant was a member, and as such was present, said:

"They will put you in a room over there, and don't have anything to say. He cautioned us about this dictaphone, or whatever you call it, in the wall, and says: 'If you say anything they will get it on that, and they will have it just the same as if you were making a statement yourself; the biggest thing you can say is to say, "No, know nothing about it." ' "

If these statements had been made by defendant, or if made in such manner or under such circumstances as that he would be bound by them, such evidence would have been relevant. Smith v. State, 16 Ala.App. 546, 79 So. 802. But these statements, if made, were made by a party not shown to have been one of the conspirators, and against whom there was no sufficient evidence to connect him with the conspiracy at a time and place after the crime had been consummated and under circumstances which did not call for repudiation by the defendant. Even if it be admitted that Capt. Lollar was one of the conspirators (and as to this there is no sufficient evidence in this record), the declaration admitted in evidence was after the common enterprise was at an end, and in such cases subsequent...