Patterson v. State, 4 Div. 733

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation202 Ala. 65,79 So. 459
PartiesPATTERSON et al. v. STATE.
Docket Number4 Div. 733
Decision Date16 May 1918

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. [79 So. 460]

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...

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43 practice notes
  • State v. Flory, 1538
    • United States
    • United States State Supreme Court of Wyoming
    • 3 Abril 1929
    ...J. 229; Styles v. State, (Ala.) 59 So. 698. The character of the victim does not change the unlawfulness of the act. Patterson v. State, 202 Ala. 65; State v. Witt, (Kan.) 8 P. 769. Instruction No. 33, complained of by appellant is in a form approved by this court in Harris v. State, 23 Wyo......
  • Gwin v. Fountain, 28082
    • United States
    • United States State Supreme Court of Mississippi
    • 20 Enero 1930
    ...he might have had as to such questions. Morris v. Robinson Bros. Motor Co., 144 Miss. 861, 110 So. 683; Owens v. Waddell, 87 Miss. 310, 79 So. 459; 87 Miss. 315 and 316; N. O. J. & G. N. R. R. Co. v. Wallace, 50 Miss. 244. The sworn itemized account against the appellant in favor of W. R. F......
  • Douglas v. State, 2 Div. 61
    • United States
    • Alabama Court of Appeals
    • 8 Octubre 1963
    ...must be confrontation face to face to allow viva voce cross-examination before the jury. Connelly v. State, supra; Patterson v. State, 202 Ala. 65, 79 So. 459; Gore v. State, 58 Ala. 391; Wharton, Criminal Evidence (12th Ed.), § § 437-38. See Hunter v. State, 112 Ala. 77, 21 So. 65; also Mc......
  • Kabase v. State, 6 Div. 991.
    • United States
    • Alabama Court of Appeals
    • 16 Febrero 1943
    ...as to the guilty, the law provides that such shall not be punished except in the mode and manner provided by the law." Patterson v. State, 202 Ala. 65, 68, 79 So. 459, 462. In this case we are convinced that the errors which intervened during the trial, dealt with hereinabove, resulted in s......
  • Request a trial to view additional results
43 cases
  • State v. Flory, 1538
    • United States
    • United States State Supreme Court of Wyoming
    • 3 Abril 1929
    ...J. 229; Styles v. State, (Ala.) 59 So. 698. The character of the victim does not change the unlawfulness of the act. Patterson v. State, 202 Ala. 65; State v. Witt, (Kan.) 8 P. 769. Instruction No. 33, complained of by appellant is in a form approved by this court in Harris v. State, 23 Wyo......
  • Gwin v. Fountain, 28082
    • United States
    • United States State Supreme Court of Mississippi
    • 20 Enero 1930
    ...he might have had as to such questions. Morris v. Robinson Bros. Motor Co., 144 Miss. 861, 110 So. 683; Owens v. Waddell, 87 Miss. 310, 79 So. 459; 87 Miss. 315 and 316; N. O. J. & G. N. R. R. Co. v. Wallace, 50 Miss. 244. The sworn itemized account against the appellant in favor of W. R. F......
  • Douglas v. State, 2 Div. 61
    • United States
    • Alabama Court of Appeals
    • 8 Octubre 1963
    ...must be confrontation face to face to allow viva voce cross-examination before the jury. Connelly v. State, supra; Patterson v. State, 202 Ala. 65, 79 So. 459; Gore v. State, 58 Ala. 391; Wharton, Criminal Evidence (12th Ed.), § § 437-38. See Hunter v. State, 112 Ala. 77, 21 So. 65; also Mc......
  • Kabase v. State, 6 Div. 991.
    • United States
    • Alabama Court of Appeals
    • 16 Febrero 1943
    ...as to the guilty, the law provides that such shall not be punished except in the mode and manner provided by the law." Patterson v. State, 202 Ala. 65, 68, 79 So. 459, 462. In this case we are convinced that the errors which intervened during the trial, dealt with hereinabove, resulted in s......
  • Request a trial to view additional results

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