Lowe v. State

• Decision Date: 26 June 1945
• Docket Number: 3 Div. 871.
• Citation: 32 Ala.App. 176,22 So.2d 618
• Parties: LOWE v. STATE.
• Court: Alabama Court of Appeals

22 So.2d 618

32 Ala.App. 176

LOWE v. STATE.

3 Div. 871.

Alabama Court of Appeals

June 26, 1945

John A. Sankey and L. H. Walden, both of Montgomery, for appellant.

Wm N. McQueen, Acting Atty. Gen., and MacDonald Gallion, Asst Atty. Gen., for the State.

CARR Judge.

The indictment in this case contains three counts, two charging burglary and one grand larceny. The verdict, 'We, the jury, find the defendant guilty as charged in the indictment', states the finding of the jury.

We cannot accord merit to the insistence of appellant's counsel that the corpus delicti was not proven. The undisputed evidence discloses that the store house of Mr. Sam Stewart was entered by the displacement of some iron bars that formed a protection to a window of the building. A few hours later the means of ingress was discovered and the inside of the building was found disturbed and disordered and many articles of merchandise were observed missing. Clearly, the corpus delicti was established by this proof. Ashmon v. State, 9 Ala.App. 29, 63 So. 754; Vaughn v. State, 24 Ala.App. 604, 139 So. 833.

When the State had concluded its evidence in chief, appellant moved for an exclusion of the testimony and a directed verdict in his behalf. The trial court overruled the motion. This urgency was based primarily on the position that the testimony of an admitted accomplice had not been sufficiently corroborated. Title 15, Section 307, Code 1940.

To intelligently discuss this inquiry it is appropriate that we give a summary of some of the evidence. Appellant's brother, Jasper Lowe, at the time of the alleged crime was living with the defendant. Within a few hours after the discovery of the offense the officers went to appellant's home and there found some of the articles that had been taken from the burglarized building. They also observed appellant's automobile parked nearby. On account of the serious illness of an inmate of the household, a thorough search was not attempted but some of the merchandise was located in the house and some in a potato bed in the yard. It was shown in evidence that some flour was missing from Mr. Stewart's store, and the officers testified that flour dust was observed in defendant's car, also on the ground nearby and leading up to his dwelling. Appellant assisted the officers in locating the stolen articles and claimed that his brother, Jasper, brought the goods there during the night. Defendant disavowed any knowledge of the theft and disclaimed any participation in the crime. He testified that Jasper had not had the use of his car. Jasper was asleep in the house when the officers arrived, and his slumbers were not disturbed until shortly thereafter when he was arrested and taken to jail. After indictment, he entered a plea of guilty and at the time of the trial of the case at bar he was serving an imposed sentence at Kilby Prison. As a witness for the State in the instant case, Jasper testified that he, in concert with appellant and a negro man, burglarized Mr. Stewart's store, each personally participating in the accomplishment of the crime, and that appellant's automobile was used to convey the stolen articles. He testified also that while he was in the county jail awaiting indictment and trial appellant paid him $50 with the understanding that he would not give testimony implicating appellant in the commission of the burglary. According to the accomplice's testimony, the defendant appeared outside of his cell window and there had the conversation, and the money was conveyed through a hole in the window. This testimony found support in the evidence of Albert Goodwin. Albert, it seems, had also gotten into trouble and in jail, and was confined in a cell just above Jasper. There was a hole in the floor of Albert's cell room and through this conduit he would talk to Jasper and thus pass away many of the lonely hours. He also had the vantage of a window opening to the outside. Albert testified that it was through these media that he 'overheard' the conversation and 'oversaw' the delivery of the $50. In the language of the witness, appellant said to Jasper: 'I will give you fifty dollars, Jasper, now if they don't bring up my name in this court, and I will give you fifty dollars more after they don't indict me, I will give you fifty dollars more.' Jasper showed the two twenty dollar bills and the one ten dollar bill to Albert. This he could clearly see through the hole in the floor. The sheriff testified that Jasper gave him the money in exact denomination as described above, in exchange for a check in equal amount. The bills were introduced in evidence. It was also shown that Jasper was searched when he was placed in jail and the money was not found on him at the time. Drummond v. Drummond, 212 Ala. 242, 102 So. 112.

Unquestionably, the evidence of the admitted accomplice was direct and certain as to the guilty participation of the appellant. If this testimony is corroborated as the law demands, the motion to exclude the evidence was properly denied. In that event, by the same reasoning, the affirmative charge for defendant was correctly refused.

'Whether or not there was any evidence corroborating the accomplice witness, and tending to connect the defendant with the commission of the offense, was a question of law to be determined by the court; but its probative force and sufficiency, along with the testimony of the accomplice to establish the defendant's guilt beyond a reasonable doubt, were questions for the jury.' Berry v. State, 231 Ala. 437, 165 So. 97, 99. See also, Tidwell v. State, 23 Ala.App. 409, 126 So. 186; Smith v. State, 230 Ala. 413, 161 So. 538; Brown et al. v.State, Ala.App., 19 So.2d 88.

'Corroborate', as applied to the present inquiry, means to strengthen. Its sufficiency is established if its probative value tends to connect the defendant with the commission of the crime. Smith v. State, supra.

We entertain the view that the evidence above set out clearly authorized the lower court to submit the case to the jury when considered, of course, in connection with all the other evidence in the case. It is not amiss to here observe that there was testimony which we have not hereinabove reviewed that afforded other incriminating tendencies against the appellant.

No advantage could be gained by an analysis of cases relating to the instant inquiry. Many have reached our appellate courts and each will be found to differ in factual similarity from the other. We cite a few...