Newell v. State

• Decision Date: 15 May 1917
• Docket Number: 2 Div. 156
• Citation: 75 So. 625,16 Ala.App. 77
• Parties: NEWELL v. STATE.
• Court: Alabama Court of Appeals

75 So. 625

16 Ala.App. 77

NEWELL v. STATE.

2 Div. 156

Court of Appeals of Alabama

May 15, 1917

Appeal from City Court of Selma; J.B. Evans, Judge.

Rufe Newell was convicted of murder in the second degree, and he appeals. Reversed and remanded.

The defendant was indicted for murder in the first degree, was convicted of murder in the second degree, and from the judgment appeals. The facts necessary to a decision are as follows: On a Sunday evening in May, about dusk and after defendant and deceased were seen in company of each other near the place where the murder is supposed to have been committed. About 8 o'clock Sunday night a single shot was heard and testified to by several witnesses; the shot being near where the body of the girl was afterwards found. Some of the witnesses fix the time of the shot by the ringing of a church bell and some in other ways, but all agree that it was about 8 o'clock. The last time she was ever seen alive the deceased was in the company of defendant on that Sunday night a short time before the shot was fired. On Monday morning the deceased was found dead in a plum thicket near the road with a pistol wound in her eye. The defendant lived with his mother and father a short distance from the scene of the crime. The defendant was seen at his home about 8 o'clock, and when he got home he put on his coat, and was wearing blue pants, a light shirt, and a white hat. One witness testified to having seen a boy pass her in the road near where the shot was fired and shortly thereafter that looked like defendant and was dressed in black pants and white shirt; that the boy was walking fast, and when he passed witness he just grunted. It was shown that the defendant on the Sunday of the murder had a 38 Colt pistol. The sheriff and W.F. Aycock testified to having gone to the home of the father of defendant on Monday night after the morning the body of the girl was found and getting from the mother of the defendant some shoes that made a peculiar track with three tacks in each heel. These witnesses identified the tracks at the plum thicket where the body was found as tracks that fit the shoes. The defendant objected and reserved exceptions to the testimony regarding the identity of the tracks on the theory that the state had not shown that the defendant was the owner of or ever had worn the shoes.

Arthur M. Pitts and W.E. Brown, both of Selma, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

SAMFORD J.

This conviction is based entirely on circumstantial evidence; and while circumstantial evidence is just as potent as positive evidence, every circumstance tending to connect the defendant with the crime must be connected with the defendant.

One of the strongest...