Malachi v. State

• Decision Date: 27 June 1890
• Citation: 89 Ala. 134,8 So. 104
• Parties: MALACHI v. STATE.
• Court: Alabama Supreme Court

8 So. 104

89 Ala. 134

MALACHI v. STATE.

Supreme Court of Alabama

June 27, 1890

Appeal from criminal court, Jefferson county; S.E. GREENE, Judge.

Lindsey Malachi was indicted for and convicted of the murder of John Meadows. On the trial Ben Elzy, an accomplice, testified that when they rifled the pockets of the murdered man they found two pictures, one of which was the picture of a woman; and he recognized one of the pictures exhibited to him while on the stand as one of the two. This photograph was also recognized by one Miss Barton, a witness for the prosecution, as a picture of herself, which she had given to the deceased the last time she saw him. No objection seems to have been made to the exhibition of this photograph as evidence, and no exception was reserved in reference thereto. But, during the examination of one Mitchell, a witness for the prosecution who had known the deceased during his life-time, and had seen the dead body of the murdered man, a photograph was shown to him, and the bill of exceptions recites in reference to it "Here the state offered to show the witness a photograph, to which the defendant objected, which objection the court overruled, and the defendants excepted." The witness identified the photograph as that of Meadows; and it was also identified by one Loftin, another witness for the prosecution, a similar exception being reserved to its exhibition to him. The defendant requested several charges in writing, and duly excepted to their refusal. The first and second charges each was a general charge on the evidence, and the others were as follows: "(3) Even if the jury believe that the overcoat found by the officers in the possession of Malachi, was the property of the deceased, yet if they find from the evidence that the homicide was committed in the early part of January, 1889, and that Elzy failed to identify the overcoat as being the one in the possession of the deceased, and that the coat was not found in Malachi's possession until after April 1, 1889, this is not a corroboration of Elzy's testimony such as is required by law. (4) If the jury find from the evidence that the deceased was killed in the early part of January, 1889 having in possession the overcoat offered in evidence, and that this coat was not found in the possession of Malachi until after April 1, 1889, this is not such a recent possession of the overcoat as will raise a presumption of the defendant's participation in the killing of the deceased. (5) Unless Ben Elzy identified the overcoat offered in evidence, as the one in the possession of the deceased, then any evidence that defendant had in possession the overcoat shown to have belonged to said Meadows, would be no corroboration of Elzy's evidence on that point. (6) From the evidence in this case, there arises no presumption that defendant had any connection with the crime charged, even if the jury believe that the overcoat found in his possession was the overcoat of the deceased. (7) Unless the state has satisfied the jury beyond a reasonable doubt that the overcoat found in the possession of Malachi was in the possession of the deceased at the time he was murdered, the fact of defendant's possession of it, if so found, would not be a sufficient corroborative fact to warrant defendant's conviction; but, before the state can convict him on the testimony of Elzy, the state must produce corroborative facts, other than the possession of the overcoat by the defendant, even if the jury believe that the coat so found was in fact the coat of Meadows. (8) If the jury believe that the overcoat found in the defendant's possession in April, 1889, was the coat of Meadows, the deceased, this fact would not be a sufficient corroboration of the testimony of Elzy to warrant conviction of the defendant; but there must be other corroborative facts, in addition to the possession of the overcoat. (9) If the jury do not believe the evidence of the witness Ben Elzy, the defendant cannot be convicted. (10) If the jury do not believe the testimony of the witness Ben Elzy, and if they find that there is no other evidence in the case connecting or implicating the defendant with the crime charged, except his possession of the overcoat, then he cannot be convicted."

E. T. Taliaferro, for appellant.

W. L. Martin, Atty. Gen., for the State.

STONE C.J.

At the April term, 1889, of the criminal court of Jefferson, a true bill was found and returned into court, charging five persons-Jim Williams, alias Ben Elzy, Lawrence Johnson, Henry Joe, Gilbert Lowe, and Lindsey Malachi-with the murder of John W. Meadows. On May 14, 1889, the several defendants were arraigned; one of them, Ben Elzy, pleaded guilty, and all the others pleaded severally not guilty. On May 23, 1889, Lawrence Johnson and Gilbert Lowe moved severally for a severance, and that each be tried alone; which motion was granted by the court. On the same day Lindsey Malachi and Henry Joe jointly moved that they be allowed a severance from the other defendants, and that they be tried together, but separate from Johnson, Elzy, and Lowe. This motion was granted. The trial of the two defendants, Malachi and Joe, was continued to the October term, 1889. On November 4, 1889, during the October term, the criminal court, by an order, set November 25, 1889, for the trial of Malachi and Joe; but they were not tried at that term. On November 28, 1889, each of the defendants Malachi and Joe severally moved the court to be allowed to withdraw their pleas, and to move for a severance in trial as between themselves. This motion was overruled by the court, and they were denied the right to sever further. They were tried together, and Malachi, was convicted, and Joe acquitted. This presents the first exception reserved. We hold that the criminal court did not err in this ruling. After allowing one severance to these defendants, and after granting their motion as made, any further indulgence in that direction would be, at most, discretionary with the presiding judge. Code 1886, § 4451; Rule of Practice, 86 Ala. viii.

The trial court did not err in restricting the defendants each to 11 peremptory challenges of jurors. Act approved February 28, 1889, (Sess. Acts, 1888-89, pp. 77, 78;) Maxwell v. State, 7 South. Rep. 824.

Nor was there error in permitting the photographs to be put in evidence. They were proper aids to identification. Railroad Co. v. Smith, 8 South. Rep. 43.

Ben Elzy was the only witness on the trial of this case who gave positive testimony of Malachi's participation in the double crime of robbery and murder of the deceased. Without his testimony there could have been no conviction. He was a confessed accomplice in the crime. It has always been considered dangerous to convict of a heinous crime on the uncorroborated testimony of an accomplice; and, emphasizing the sentiment, our statute (Code 1886, § 4476) declares that "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." There was outside testimony on the trial, of the conduct and various conversations of defendant, which were, no doubt, relied on as tending to prove his guilt. These were of not much significance.

The main fact relied on as corroboration arose and was presented as follows: When defendant was arrested in April, 1889, an overcoat was found in his possession, which had some unusual marks and peculiarities about it. This overcoat was produced before the jury, and witnesses testified that it was the overcoat of the deceased, which they had seen him wear on many occasions. The testimony produced by the state as to the identity of the overcoat was pretty minute and full. Against this, defendant testified that he had owned the coat for three or four years before the homicide was committed, and he produced many witnesses who testified that they had seen him wear it, some fixing the date as far back as three or four years before the time when Meadows was last seen alive. Meadows was last seen alive about the last of December, 1888. His dead body was found about February 1, 1889. Only underclothes were on or about the body when found, and the corpse was considerably mutilated and decayed. It was, however, very fully identified in several ways. Ben Elzy, the accomplice, testified minutely as to the killing, he being present, and he testified to facts which clearly prove he was a guilty participant in the crime. If his testimony be true, it was a suggestion of Malachi which led to the murder, after Meadows had been robbed. He did not testify that Meadows' clothes or the overcoat was taken. He stated that when Meadows approached them he had on a coat, pants, hat, and shoes, and had another coat thrown over his arm. He did not testify it was an overcoat, and he did not, in any way, identify the overcoat as having been in the possession of Meadows. As we have before stated, neither he nor any one else made positive proof that any clothes were taken from the person or body of Meadows; and it was thus left to inference how it was that the body had on it only under-garments when it was found. It will be observed that Malachi's arrest, and the discovery of the overcoat in his possession, occurred more than three months after the homicide was committed. On the question of corroborating Elzy's testimony by the fact that Meadow's overcoat was found in Malachi's possession, the defense assumes two forms:

First, that Elzy did not identify the overcoat, and that he gave no material testimony in regard to it. The contention is that, to corroborate the testimony of an accomplice, and thereby render it sufficient to found a conviction upon, the corroboration must be of some...