Newman v. State

• Decision Date: 17 March 1942
• Docket Number: 4 Div. 668.
• Citation: 9 So.2d 768,30 Ala.App. 529
• Parties: NEWMAN v. STATE.
• Court: Alabama Court of Appeals

9 So.2d 768

30 Ala.App. 529

NEWMAN v. STATE.

4 Div. 668.

Alabama Court of Appeals

March 17, 1942

Rehearing Denied June 2, 1942.

Appeal from Circuit Court, Barbour County; J.S Williams, Judge.

Chauncey Sparks, of Eufaula, for appellant.

Thos. S. Lawson, Atty. Gen., and John J. Haynes and Walter W. Flowers, Asst. Attys. Gen., for the State.

BRICKEN Presiding Judge.

The prosecution in this case is based upon the following indictment, omitting formal parts and endorsements:

"Indictment for Arson 3rd. Degree.

"The State of Alabama, "Barbour County

Circuit Court, Fall Term, 1940 At Eufaula, Alabama

"The Grand Jury of said County charge that before the finding of this indictment and since the 1st day of January 1940, that Fred Newman and C.D. Brown, whose Christian name is to the grand jury unknown, willfully or with intent to charge injure or defraud the insurer, set fire to the following personal property; one 1940 Model Plymouth automobile, the property of the said Fred Newman, which property was at the time insured against loss or damage by fire against the peace and dignity of the State of Alabama."

Before entering upon the trial, the record discloses that the defendant, Fred Newman (appellant), prayed for, and was granted, a severance.

Also, before pleading to the merits, the defendant demurred to the indictment upon the following grounds:

"Now comes the defendant, Fred Newman, and demurs to the indictment in this cause and for grounds of demurrer, assigns the following:

"1st. Said indictment charges no crime.

"2nd. Said indictment is not sufficient in its averments to charge the defendant with any crime known to the laws of Alabama.

"3rd. Said indictment is defective in that it fails to name the insurer.

"4th. Said indictment is defective and therefore void, for failure to name the insurer.

"5th. The indictment fails to name the insurer whom, it is charged, the defendant intended to charge, injure, or defraud.

"6th. Under the statute creating the crime here laid against the defendant, it is necessary to allege the insurer of the property burned; and this the indictment fails to do."

In this connection the trial court made and entered the following order, as shown by the judgment entry, viz.: "The defendant in open Court demurs to the indictment, and the Court considers said demurrers and it is ordered and adjudged by the Court that the demurrers to the indictment be and they are hereby overruled, and to the action of the Court the defendant excepts."

On this appeal, able counsel for appellant, forcefully and elaborately argues the above stated ruling of the court and strenuously insists that error prevailed in overruling the demurrers.

The propositions raised by the demurrers are practically identical with those involved and presented in the case of Dean v. State, 29 Ala.App. 401, 197 So. 51, wherein the views of this court were expressed by our lamented associate, Judge SAMFORD, and which, as therein appears, were in line with the insistences here presented by counsel for appellant. However, upon certiorari to the Supreme Court, that court granted the writ, and held that the opinion of this court was in error. See Dean v. State, 240 Ala. 8, 197 So. 53. The opinion of the Supreme Court prevailed under the provisions of Section 7318 of the Code of Alabama 1923, Code 1940, Tit. 13, § 95, and as we see it, said opinion is a complete answer to the insistences here urged, in the instant case; hence it appears, no further discussion of these questions is necessary. Upon authority of the Supreme Court's decision in the Dean case, supra, we perforce must, and do, hold there was no error in the action of the trial court in overruling the demurrers, above quoted.

The statement of facts, incorporated in appellant's brief, appears, in the main, to be borne out by the record. As stated in said brief they are as follows:

"The defendant, Newman, owned a Plymouth four door sedan, which he bought in January, 1940, at Columbus, Georgia. The purchase price of the car was financed through the Commercial Credit Company, and there was at the time of the fire, balance owing on the purchase price and one defaulted monthly installment. The testimony of the State consisted largely of the confession of the co-conspirator, Brown. He testified that Newman told him, Brown, that he, Newman, would give Brown his account at Newman's store if Brown would burn up the Plymouth automobile. The amount of the account testified to by Newman (Brown did not know) amounted to $1.90, according to the books of Newman. Brown then took the car and left the place of business of the defendant, Newman, and went around a side road and just as he was coming back into the main highway, the car turned over and burned up. He explained that he had saturated the car with gasoline, two gallons of which, or approximately two gallons, he had obtained at Newman's filling station, and that he put on brakes and the car was dragged to one side, struck a bank and turned over. After it had turned over, as shown by cross examination of this witness, he struck a match, threw it in the car at the only window then open and it immediately blazed up from the evaporated gasoline which he had poured in there some minutes before.

"Newman, defendant, denied any agreement to burn, intention to burn, or any desire to burn. He stated that the boy, Brown, came to him and informed him that someone down the road was out of gas and wanted a couple of gallons. Newman told Brown that his gasoline can was out then and for Brown and Newman's son, Herman, to put two gallons in a water bucket and take it to the stalled car. Herman Newman and Brown pumped out approximately two gallons, all there was in the tank, and put it in the car, and Brown drove off in the opposite direction from the spot at which the car burned. The water bucket was found out in a field some 30, 40 or 50 yards from the point where the car burned. Brown stated that he drove with one hand, emptied the water can with the other hand, and then threw the water can over into a field, all the while driving the vehicle.

"Brown denied the burning at first, stating it was accidental. He made contrary statements often, according to testimony of defendant."

As will be noted, the conviction of the defendant rested and was had upon the testimony of Brown, the accomplice, and admitted culprit who set fire to the automobile.

The paramount question of fact upon this appeal is whether or not there was sufficient evidence offered upon the trial to meet the required rule fixed by statute which provides: "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; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient." Section 5635, Code 1923, Code 1940, Tit. 15, § 307.

Upon the trial below, the defendant took the position that there was not sufficient corroboration, and by every known means sought to have the trial court to so hold. On this appeal this insistence is urgently renewed, and a large number of the assignments of error are predicated upon this proposition.

Under the long established and oft announced rule, the province of the court, in connection with the foregoing, was confined to the ascertainment, from the testimony, whether or not, as a matter of law, there was any evidence adduced upon the trial which tended to meet the requirement or provisions of the statute, supra. If the court so ascertained, it was his duty to submit such evidence to the jury for its consideration and determination. In other words, whether or not there was evidence corroborating the accomplice witness, tending to connect the defendant with the commission of the offense, is a question of law; its weight and sufficiency, along with the testimony of the accomplice to show the defendant's guilt beyond a reasonable doubt, were questions for the jury.

In Berry v. State, 231 Ala. 437, 165 So. 97, 99, the court said: "The testimony relied upon to corroborate the accomplice must, of course, tend to connect the defendant with the commission of the offense; but it is not essential that it should refer to 'any statement or fact testified to by the accomplice.' The purpose of the corroboration is not necessarily to prove the defendant is guilty, but to strengthen the credibility of the testimony of the accomplice. If the corroborating testimony strengthens the probative incriminatory force of the accomplice's testimony, and tends to connect the defendant with the commission of the offense, it is sufficient to warrant the submission of the issue involving guilt or innocence to the jury. Smith v. State, supra [230 Ala. 413, 161 So. 538]; Malachi v. State, 89 Ala. 134, 8 So. 104."

On this appeal the State contends there was not only evidence of corroboration sufficient to justify the trial court in submitting this question to the jury, over the several objections and exceptions of defendant; but also ample to support the verdict of the jury and sustain the judgment of conviction, from which this appeal was taken.

In this connection it is insisted that there appears nowhere in the testimony anything tending to show that Brown had any reason or motive in setting fire to the automobile, except that stated in his testimony. It is further insisted that the physical facts attending the act of setting fire to the car bear out in detail the statement of Brown, the accomplice, as to how the act was committed. It affirmatively appears from the evidence that, as Brown stated, the back part of the automobile had been saturated with gasoline, and...