Lotz v. State

• Decision Date: 08 April 1930
• Docket Number: 8 Div. 990.
• Citation: 23 Ala.App. 496,129 So. 305
• Parties: LOTZ v. STATE.
• Court: Alabama Court of Appeals

129 So. 305

23 Ala.App. 496

LOTZ v. STATE.

8 Div. 990.

Court of Appeals of Alabama

April 8, 1930

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Henry Lotz was convicted of burglary, and he appeals.

Reversed and remanded.

W. H Long, of Decatur, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

The offense charged by indictment against this appellant was burglary. The store of A. M. Cottrell was the building in question, and by the undisputed evidence the corpus delicti was fully proven, and to this extent the burden resting upon the state was fully met. No question is raised upon this proposition.

On arraignment this appellant interposed a plea of not guilty and upon the trial he strenuously insisted that he was at home with his mother and family and one or more visitors, at the time the burglary complained of was committed; that he had no knowledge of the crime or connection therewith. Several witnesses testified to the same effect, but the evidence offered by the state tended to connect this appellant with the burglary. He (appellant) is alone indicted for the offense, but the state's evidence tended to show that three other boys were with appellant and participated in the burglary. By their own statements and admissions while testifying in this case, each of said persons were admitted accomplices, and one of the principal insistences of error here urged is that the conviction of this appellant was had upon their testimony alone and there was no other evidence tending to connect this defendant with the commission of the offense. If this were true, it would be conclusive of this appeal, for by express terms of the statute a conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof is not sufficient. Section 5635, Code 1923. The fact of more than one accomplice having testified against appellant does not change the rule as to corroboration necessary to connect the defendant with the commission of the offense. The rule provided by statute, supra, contemplates "other evidence" than that given by an accomplice or any number of accomplices.

Generally, the rule is, as to whether there is any evidence on a given subject is a question for the court; its weight, probative force, and sufficiency are for the jury.

In submitting this case to the jury, the trial court manifested thereby in the court's opinion there was evidence given upon the trial, other than that of the accomplices, which tended to connect this appellant (defendant) with the commission of the offense.

State witness Poole, an admitted accomplice, gave evidence as to where some of the stolen articles had been hidden by him and the defendant; and witness Gilbert testified that he found the articles thus hidden at the place indicated by witness Poole. In this...