Layne v. State, 6 Div. 89.

• Decision Date: 13 February 1945
• Docket Number: 6 Div. 89.
• Citation: 21 So.2d 553,32 Ala.App. 34
• Parties: LAYNE v. STATE.
• Court: Alabama Court of Appeals

21 So.2d 553

32 Ala.App. 34

LAYNE v. STATE.

6 Div. 89.

Alabama Court of Appeals

February 13, 1945

Rehearing Denied Feb. 27, 1945.

Wm Conway, of Birmingham, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and Chas. M Cooper, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

There is no dispute, or conflict in the evidence as to the crimes of burglary and grand larceny, as charged in the indictment having been committed, and likewise that one Donald Stinson was the perpetrator. It was the theory and contention of the State that this appellant Louis Edgar Layne, was a conspirator, or accomplice in the crime complained of, and he was separately indicted, upon which the trial of this case was based.

The State in order to sustain the indictment relied principally upon its evidence tending to support appellee's 'Statement of Facts' as appears in brief. Said statement is substantially as follows:

'The combination filling station and cafe operated by Mr. and Mrs Hershell Cross located in Birmingham was burglarized one night in August, 1943. Two pistols, a shotgun, and other property, all belonging to Cross, were stolen from a cabinet inside the establishment. Some of the property was recovered subsequently by a city detective with the assistance of one Donald Stinson, the admitted thief.

'The evidence for the State tended to show further that on the night in question Appellant's automobile was parked across the street from the filling station at the time the Crosses locked up for the night; that Appellant was in or around his car so parked at the time of the burglary; that R F. Naramore, who lived nearby, came upon the scene, saw the automobile with Appellant in it and heard the car's horn blow at least three times, immediately after which he heard a 'racket at the filling station' which he investigated; that Naramore saw 'a fellow coming out of the window' of the filling station whom he identified as Donald Stinson. Stinson ran away from the filling station and the automobile and did not return; Naramore had the police summoned and waited behind a hedge watching the automobile until they arrived; Appellant prior to the arrival of the officers had the door of the car open and he was looking up and down the street; that Appellant was trying to start the car when the police went over to him from the filling station and got him out of the car. Appellant was arrested and carried to jail. His car was towed off by the city's wrecker.

'Donald Stinson was apprehended by State's witness Weir, a city detective, on the day after the crime. Stinson told Weir where the property could be recovered. At the jail Appellant, in the presence of Weir, was accused by Stinson of participation in the crime and Appellant did not deny it.

'The only evidence for Appellant was his own testimony. It was substantially to the effect that he and Donald Stinson had been together practically and of the day of the burglary; that early in the evening he drove alone to a tourist camp on the Jasper Road, drank some beer, and rove back to the vicinity of the burglarized filling station where his car stalled; that he was working on his car trying to get it to start and did not know anything about the burglary; that he did not blow the car's horn and that he was an innocent bystander. He also claimed that he denied any participation in the offense when accused by Stinson at the jail.'

The 'Statement of Facts' in appellant's brief presents his version of what occurred during the trial as to the facts of the case. This statement is also quoted and is as follows:

'The prosecutor sought to prove by the witnesses for the State, that Donald Stinson broke into a filling station in the night being located at 2201 North 16th street in the City of Birmingham, Alabama, and stole therefrom some pistols, shot guns, and other property, and that appellant was his accomplice in this; that appellant had a car parked across the street from the filling station for the purpose of carrying away the loot or to warn Donald Stinson in the event anyone approached the place, that is to say; as a 'look out,' and that appellant tooted his horn as the warning signal when state witness Naramore went to the filling station for the purpose of getting a pitcher of water.

'After the filling station had been burglarized by Donald Stinson the loot was recovered by the police officers from Donald Stinson who was also indicted by the grand jury for the same offense.

'Appellant was arrested on the same night of the burglary, however, Donald Stinson escaped and was arrested several days later. Witness Naramore saw Donald Stinson run from the filling station and immediately called police officers who arrived at the filling station a few minutes later and arrested appellant who then and there denied any connection with the burglary and denied any participation therein and that his reason for being on the public street at that time and place was that his automobile had become stalled, and that he was endeavoring to get it started. When Donald Stinson ran from the filling station he ran in a direction away from the place where appellant was parked.

'None of the property alleged to have been stolen was recovered from Appellant and the prosecution is based solely on the contention that appellant was in the automobile with the intention of giving aid, warning or assistance to Donald Stinson in the commission of the offense.

'Donald Stinson made a confession and signed a statement at the city jail confessing his guilty participation in the burglary, and the state contends that said statement implicated appellant. What the statement was, and the details thereof was not introduced in evidence, however, the State contends that Donald Stinson made a statement to the officers in the presence of appellant which implicated appellant and that the statement was not denied by appellant, what the statement was, was never proven and appellant contends that he denied to the officers in the presence of Donald Stinson that the statement by Donald Stinson was not true, and denied at all times that he had participated in the burglary in any manner.

'Appellant contends that he was entitled to the general charge duly requested in writing and denied by the trial court.

'The Court was in error in permitting the police officers to testify that Donald Stinson made a statement in the presence of appellant at the city jail implicating appellant in the burglary and which statement was denied by appellant, and that there was manifest error, in that, the contents of the statement was not proven, and it was not shown what the purported statement was; and the trial court gave undue prominence to said statement in his oral charge to the jury, exceptions being reserved thereto as shown by the record.

'Appellant further says that the solicitor made improper...