Patterson v. State

• Decision Date: 16 May 1918
• Docket Number: 4 Div. 733
• Citation: 202 Ala. 65,79 So. 459
• Parties: PATTERSON et al. v. STATE.
• Court: Alabama Supreme Court

79 So. 459

202 Ala. 65

PATTERSON et al. v. STATE.

4 Div. 733

Supreme Court of Alabama

May 16, 1918

Rehearing Denied June 20, 1918

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

Rich Patterson and Fannie Harris were convicted of murder in the first degree, and appeal. Reversed and remanded in part, and in part affirmed.

Mayfield Sayre, and Thomas, JJ., dissenting in part.

Chauncey Sparks, of Eufaula, and G.W. Winn, of Clayton, for appellants.

F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.

THOMAS J.

Appellants were tried and convicted of murder in the first degree, and sentenced respectively to the penitentiary for life.

There was no error in overruling the motion to quash the venire and compelling the defendants to go to trial with less than 50 jurors on the panel from which to strike. It is sufficiently shown that the special venire was waived as provided by section 7264 of the Code. The recital in the judgment entry showing the waiver is:

"Defendants being in open court attended by their counsel, and being duly arraigned upon said indictment, plead not guilty, and in connection therewith file their written waiver of a special venire and the service of a copy of the indictment and venire for the trial of this cause."

The bill of exceptions also sets out that upon being arraigned the defendants pleaded not guilty, "and then and there waived a special venire and consented in writing to be tried by the jurors in attendance upon the court." McSwean v. State, 175 Ala. 21, 57 So. 732; Washington v. State, 188 Ala. 101, 66 So. 34; Burton v. State, 194 Ala. 2, 69 So. 913; Harper v. State, 13 Ala.App. 47, 69 So. 302.

It has been declared that threats against a class may be given in evidence when the party injured is of that class. Such a threat may be only slight evidence, yet be competent for the jury to consider in connection with the other evidence. Sharp v. State, 193 Ala. 22, 69 So. 122.

The testimony of Stevenson tended to show the deceased to be of the class referred to in the threat by Fannie Harris. If not made relevant as to defendant Patterson by evidence tending to show, or confirmatory of, a conspiracy on his part with defendant Harris, this testimony on motion should have been limited as to him. When, however, this evidence was made relevant by evidence, direct or circumstantial, prima facie sufficient to establish the existence of a conspiracy between these defendants, it was for the jury's consideration in passing on the guilt or innocence of each defendant. McAnally v. State, 74 Ala. 9; Hunter v. State, 112 Ala. 77, 21 So. 65; National Park Bank v. L. & N.R.R. Co., 74 So. 69, and authorities there collected; Cooley on Torts, § 143. Where there was a previously formed purpose or conspiracy to commit the offense in question, the declarations, acts, and conduct of one conspirator, done or expressed in promotion of, or in relation to, the object and purpose of the conspiracy, are those of the other; and such declarations, acts, or conduct may be given in evidence against each conspirator. "To allow such testimony to go to the jury, a foundation must be laid by proof sufficient, in the opinion of the presiding judge, to establish, prima facie, the existence of the conspiracy;" the evidence on which the judge acts need not necessarily establish the corpus delicti. 1 Greenl. Ev. § 184, a, b; 2 Jones Ev. § 254; Stephens, Ev. 46; Morris v. State, 146 Ala. 66, 41 So. 274; Boswell v. State, 1 Ala.App. 181, 56 So. 21; Smith v. State, 8 Ala.App. 187, 62 So. 575.

The confession of defendant Patterson, in the absence of defendant Harris, was not competent evidence against the latter, and should have been limited by proper instructions, as being admitted only to show (as it might tend) the guilt of the confessor. Hendley v. State, 76 So. 904; Everage v. State, 113 Ala. 102, 21 So. 404; Lowman v. State, 161 Ala, 47, 50 So. 43; Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am.Rep. 133; National Park Bank v. L. & N.R.R. Co., supra.

It is not required that the corpus delicti be proved by direct or positive evidence; it may be shown by evidence from which only a reasonable inference may be drawn by the jury that the offense has been committed. To its ascertainment, the proven facts and circumstances should be considered together, and if, upon the whole evidence, the jury are satisfied beyond a reasonable doubt (a) that the crime has been committed, and (b) that the defendant is the guilty perpetrator, it is the duty of the jury to convict. Ryan v. State, 100 Ala. 94, 14 So. 868; Fowler v. State, 170 Ala. 65, 54 So. 115. A mere confession without other proof of the crime will not support a conviction. Calvert v. State, 165 Ala. 99), 51 So. 311; Harden v. State, 109 Ala. 50, 19 So. 494.

The evidence bearing on the fact of tracks of two persons, detailed by the witnesses Hall and Bostick, when considered with the other evidence, was competent as tending to identify the guilty parties--the tracks leading from the house to the scene of the crime appearing to have been made by persons running and to be those of a man and a woman. Such evidence further tended to corroborate the confession of defendant Patterson, and the threat and the admissions against interest of the defendant Harris. Brindley v. State, 193 Ala. 43, 69 So. 536, Ann.Cas.1916E, 177.

There was no error in permitting the witness to testify that defendant Harris looked or appeared to be excited or nervous under the circumstances detailed. Her conduct was of evidential value, in the nature of an admission against interest. Sharp v. State, supra; Patton v. State, 197 Ala. 180, 72 So. 401; State v. Houston, 78 Ala. 576, 56 Am.Rep. 59; Sims v. State, 146 Ala. 109, 41 So. 413; Tagert v. State, 143 Ala. 88, 39 So. 293, 111 Am.St.Rep. 17; Hainsworth v. State, 136 Ala. 13, 34 So. 203.

The letter from defendant Harris was properly admitted in evidence as tending to show a motive on her part for the crime, and as corroborative of the testimony of Stevenson touching threats on her part, and of the testimony of the witnesses Kolb and Holkins as to this defendant's declarations against interest; and it was competent for consideration by the jury in its relation to the confession of defendant Patterson.

The court began the oral charge with the statement:

"That indictment, gentlemen, contains several degrees of homicide and manslaughter; murder in the first degree, and murder in the second degree; manslaughter in the first degree, and manslaughter in the second degree. The facts in this case are such that any charge on any other degree of homicide would be needless, and, therefore, by agreement of counsel representing both the state and the defendant, I shall confine myself to murder in the first degree. The facts, as brought out by the evidence, eliminate the necessity of the other charges."

The court then proceeded to define the different elements of murder in the first degree, giving no definition of murder in the second degree, nor form for a verdict of conviction in the latter degree. After practically completing his oral charge, the court said further:

"It is agreed that there is but one charge for you to determine upon, that of murder in the first degree. *** The state has made out a corpus delicti, the undisputed testimony shows that a man was killed as a result of a wound inflicted from a gun, and in such manner that the person or persons committing the crime would be guilty of murder in the first degree. So the inquiry before you is whether or not these defendants are the guilty ones; or if they aided, abetted, or conspired together or separately, and whether or not as a result of that the crime was committed."

The defendants separately excepted to that portion of the oral charge in which the court said:

"The state has made out a corpus delicti, the undisputed testimony shows that a man was killed as a result of a wound inflicted from a gun, and in such manner that the person or persons committing the crime would be guilty of murder in the first degree. So the inquiry before you is whether or not these defendants are the guilty ones; or if they aided, abetted or conspired together or separately,

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