Mabry v. State

Decision Date06 January 1959
Docket Number6 Div. 628
Citation40 Ala.App. 129,110 So.2d 250
PartiesJessie W. MABRY v. STATE.
CourtAlabama Court of Appeals

Griffin & Wilson and Wm. W. Conwell, Birmingham, for appellant.

John Patterson, Atty. Gen., and John F. Proctor, Asst. Atty. Gen., for the State.

The following charges were refused to defendant:

'A5. The court charges the jury that if you believe from the evidence that Griffin, Miller, Pritchett, Floyd, McCullough and Mabry picked up Judge Aaron on the night the castration is said to have been done, with a common purpose of scaring a negro, and if the jury further believes that this defendant did not at any time change this object or further aid or abet in the castration of Judge Aaron, then the responsibility for such offense rests solely on the actual perpetrator or perpetrators of the crime and the jury cannot find the defendant guilty simply because he happened to be present at the time the offense was committed.

'A8. The court charges the jury that, although the defendant stands indicted as are others, he is not chargeable with anything which any other one named in any indictment may have done, unless he advised, aided, or abetted others in the commission of the offense charged, intending at the time, by his word or act, to aid or encourage the commission of the offense.

'A9. The court charges the jury that if you believe from the evidence that Mr. Floyd castrated Judge Aaron, then you should acquit the defendant unless you believe from the evidence that the defendant aided and abetted the said Mr. Floyd in the castration of Judge Aaron.

'B2. The court charges the jury that under the law of the State of Alabama a conviction of a defendant cannot be had upon the uncorroborated testimony of his accomplices, and the court further charges the jury that under the evidence in this case, Griffin and Miller, as a matter of law, are accomplices, and if the jury further believes that the testimony of Griffin is the only testimony in this case tending to corroborate the testimony of the said Miller, then it would be the duty of the jury to acquit the defendant.

'C8. Gentlemen, if you believe from the evidence beyond a reasonable doubt that that defendant was present at the time the crimes alleged in the indictment were committed, but that neither of the crimes alleged was the probable outcome of the common plan or design, being an independent act of some other person, then you cannot find the defendant guilty of any of the crimes alleged in the indictment.

'C9. The court charges that the purpose of the Mayhem statute was to provide against such a wilful mutilation as would be obvious to a casual observer.

'X. I charge you that if several persons conspire to do an unlawful act, an act malum in se, all the members of such illegal combination are responsible for the acts of each, done in pursuit of their common purpose. However, if an offense is committed by one or more of them, from causes having no connection with the common object, the responsibility for such offense attaches exclusively to its actual perpetrator. In such cases it is a question for the jury whether the act done was in prosecution of the purpose for which the party had assembled or confederated, or was independent, of it, and without any previous concert.'

HARWOOD, Presiding Judge.

This appellant has been adjudged guilty of mayhem, an offense denounced by Section 359, Title 14, Code of Alabama 1940. Punishment was fixed at imprisonment in the penitentiary for a term of twenty years, the maximum permissible under said section.

The victim of the mayhem was Judge Edward Aaron, who suffered castration.

The evidence presented below depicts conduct shocking in its foulness, viciousness, and savage brutality.

Without dispute the evidence shows that late on the afternoon of 2 September 1957, a group gathered in the yard of appellant's home. Included in this group were the appellant, Joe Pritchett, Bart Floyd, John Griffin, Bill Miller, and Grover McCullough.

Among the things discussed was the election of a 'captain' for the group. Bart Floyd was a prospect for this office. However, it was thought that Floyd should 'prove' his leadership before being elected.

To enable Floyd to establish his qualifications it was decided that the group would go out and 'grab a negro,' or 'grab a negro and scare hell out of him.'

The group set out on this mission in two automobiles. Appellant was in a car driven by John Griffin, in which Bill Miller was also a passenger.

At one point a stop was made by the two cars and Bart Floyd went into a drug store and emerged with a small package. While appellant denied he knew the contents of the package, other evidence shows that it contained razor blades and turpentine.

Driving around, apparently at random, the group came upon Aaron walking along the Huffman-Tarrant City road, accompanied by Cora Parker.

Aaron was forced into one of the cars and made to lie upon the rear floor.

Although at this point the appellant took over as driver of the car into which Aaron had been forced, he claimed in his testimony that he did not know what force had been used to get Aaron into the car as he had kept his face to the front in order to avoid any later identification. He did however admit furnishing his handkerchief to be used to blindfold Aaron.

With appellant driving the lead car, the two cars proceeded to a concrete block house, on the outskirts of Birmingham, used as a meeting hall for the group. Hoods were procured for the group to put on. Aaron was made to crawl into the house, guided by Pritchett and followed by appellant.

Inside the house Aaron was questioned, and during the process was kicked in the face by Pritchett. Eventually he was asked if he 'wanted his life or his testicles.' Appellant testified he heard this part of the questioning.

Aaron was forced to remove his trousers and shorts, some scuffling ensuing at this junction. According to Aaron he was struck on the head with a pistol by the appellant, and also hit by someone else. According to other evidence introduced by the State, he was hit on the head with a tire tool by another of the group and knocked unconscious. Pritchett then commanded Floyd to do his duty.

Floyd proceeded to castrate Aaron with a razor blade, excising the entire scrotum and contents in the process.

After about five minutes Aaron was assisted to one of the cars and put in the trunk compartment. The appellant left the meeting hall in this car. Driving to a remote area, Aaron was removed from the car and left on the road. A few hours later he was discovered by two police officers of the City of Birmingham and taken to a hospital. After lingering between life and death for some two weeks Aaron eventually recovered.

In general, the State's case was presented on the theory of appellant's guilt as a conspirator.

The defense was directed toward an attempt to show that if a conspiracy ever existed, it was merely to 'scare a negro,' and that Floyd's act was his own independent act, beyond the scope of any original conspiracy entered into by the appellant, and therefore an act for which the appellant should not be held responsible.

Examining the undisputed facts in the light of appellant's contention we find:

1. The first meeting of the group was in appellant's yard.

2. It was here agreed they would go out and 'grab a negro,' or 'scare a negro,' or 'scare hell out of a negro,' any and all of which acts were unlawful.

3. Upon the seizure of Aaron the appellant drove the automobile into which Aaron had been forced, and though, according to appellant, not directed by anyone to do so, drove the car to the meeting hall.

4. The appellant followed the crawling Aaron into the hall.

5. There, with appellant present, Aaron was asked by Pritchett if he wanted 'his life or his testicles,' and upon replying he wanted both, being kicked in the face.

6. In the short struggle ensuing this, Aaron was knocked unconscious by a blow on the head with an iron instrument.

7. Appellant assisted in replacing Aaron's clothing after the mutilation, and assisted in placing him in the trunk of a car, in which appellant rode, and from which car Aaron was later removed on a remote road and abandoned.

In general a conspiracy comes into being 'when two or more persons enter upon an unlawful enterprise with a common purpose to aid, assist, advise, or encourage each other in whatever may grow out of the enterprise upon which they enter, each is responsible civilly and criminally for everything which may consequently and proximately result from such unlawful purpose, whether specifically contemplated or not, and whether actually perpetrated by all or less than all of the conspirators.' Martin v. State, 89 Ala. 115, 8 So. 23, 24; Cleveland v. State, 20 Ala.App. 426, 103 707, 709; Carlisle v. State, 36 Ala.App. 241, 58 So.2d 638.

As pointed out in the Martin case, supra: 'It should be observed however, that while the parties are responsible for consequent acts growing out of the general design, they are not for independent acts growing out of the particular acts of individuals.'

Counsel for appellant argues that the castration of Aaron must be considered as the malicious independent act of Floyd, for which appellant was not responsible, because not within the scope of the agreement to 'scare a negro.'

Such argument overlooks the undisputed facts that after Aaron was in the meeting house he was asked by Pritchett if he wanted his life or his testicles. Appellant admits hearing this question propounded, and that he heard a scuffle. That he had been up to his neck in this unlawful enterprise up to this point cannot be denied. The purpose of the conspiracy from this point on became crystal clear. The appellant made no objections to its execution, and no effort towards its prevention. He would seek to escape responsibility by saying that he turned his...

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