Moore v. State

• Decision Date: 01 August 1916
• Docket Number: 3 Div. 226
• Citation: Moore v. State, 15 Ala.App. 152, 72 So. 596 (Ala. App. 1916)
• Parties: MOORE v. STATE.
• Court: Alabama Court of Appeals

72 So. 596

15 Ala.App. 152

MOORE v. STATE.

3 Div. 226

Court of Appeals of Alabama

August 1, 1916

Appeal from Circuit Court, Autauga County; W.W. Pearson, Judge.

Riley Moore was convicted of grand larceny, and he appeals.Affirmed.

Guy Rice, of Prattville, for appellant.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty Gen., for the State.

EVANS J.

Appellant was jointly indicted with several others for grand larceny--the theft of two cows.A severance was granted and appellant put upon his trial and convicted.

The state's testimony consisted of two witnesses, the owner of the cows and one Sam Baker, a person jointly indicted with appellant.The tendency of the owner's testimony was to prove the value, identity, and theft of the cows, but not to connect appellant with the commission of the offense.The owner did testify, however, that on one occasion appellant rode with him in his buggy and on that occasion had said that one Jack Sadler(a codefendant)"knew more about the cows than he had ever told"; and it may be that this statement had sufficient weight with the jury to justify an inference or belief in the guilty knowledge and perhaps the complicity of the appellant.Appellant's commission of the theft was deposed to by Baker and was clear and positive.Baker testified, in substance, that about midnight he heard a racket out in the lot and arose to ascertain the cause.On going there, or near there, he discovered appellant and three other men, and saw them catch and "rope" two cows.Appellant and the other men led the cows down into the swamp and he(Baker) followed at a distance and saw appellant kill the cows.Appellant denied any knowledge or connection whatever with the matter.

In this state of the evidence, it is contended that appellant was improperly convicted on the uncorroborated testimony of an accomplice.A conviction for a felony, to be sure, 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 (Code, § 7897); but before this rule has any field of operation, it must first be shown that the witness was an accomplice, and if this is left in doubt or uncertain, it becomes a question for the jury under proper instructions from the court.And, says Justice Stone, in Ross' Case, 74 Ala. 532:

"They[the jury] must be reasonably convinced he was such accomplice before the statutory requirement comes into play."Childress v State,86 Ala. 77, 5 So. 775;Newsum v. State,10 Ala.App. 124, 65 So. 87.

The test of what constitutes an accomplice has been laid down by our Supreme Court in Ash's Case, 81 Ala. 76, 1 So. 558.

The fact that Sam Baker was jointly indicted with appellant will not per se raise a presumption against the state that Baker was an accomplice.This is a matter of proof.The state had the right to avail itself of Baker's testimony, whether he was an accomplice or not; the effect,...