Pearce v. State, 6 Div. 813

• Decision Date: 31 October 1935
• Docket Number: 6 Div. 813
• Citation: 164 So. 118,231 Ala. 150
• Parties: PEARCE v. STATE.
• Court: Alabama Supreme Court

164 So. 118

231 Ala. 150

PEARCE v. STATE.

6 Div. 813

Supreme Court of Alabama

October 31, 1935

Certiorari to Court of Appeals.

Petition of Clifton Edward Pearce for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Pearce v. State, 164 So. 114.

FOSTER J., dissenting.

Beddow Ray & Jones, of Birmingham, for petitioner.

A.A Carmichael, Atty. Gen., for the State.

PER CURIAM.

Without committing ourselves to all the expressions of the Court of Appeals, we are of opinion that the facts shown by the entire opinion of that court disclose sufficient corroboration to make a case for the jury. Malachi v. State, 89 Ala 134, 8 So. 104; Smith v. State, 230 Ala. 413, 161 So. 538.

Writ denied.

All the Justices concur, except FOSTER, J., who dissents.

FOSTER Justice (dissenting).

The question here decided by the Court of Appeals was that certain facts were sufficient to invoke consideration by the jury of whether the testimony of an accomplice was corroborated as required by section 5635, Code. The final question of corroboration was properly held by the Court of Appeals to be a jury question, and it was further held by the court that there was evidence from which such an inference could be found by the jury without doing violence to reason, considering the true and proper meaning of section 5635, Code. I do not hesitate to say that the Court of Appeals did correctly state the interpretation of that statute.

We come then to the question of whether the holding by the Court of Appeals that the facts recited by it are sufficient to justify a submission to the jury of corroboration is one of fact, and not here reviewable, or is one of law, correctly applied.

On direct appeal, the question of whether the evidence of an accomplice is sufficiently corroborated to justify a verdict of guilt by the jury has been reviewed as other questions on which the court ruled, in the nature of legal questions. It is the province of the court to determine as a legal question whether there is evidence of a corroborative nature. So that there must be evidence, and it must be corroborative. That presents a legal status which the appellate courts review as a question of law. Ross v. State, 74 Ala. 532; Malachi v. State, 89 Ala. 134, 8 So. 104; Lindsey v. State, 170 Ala. 80, 54 So. 516; Read v. State, 195 Ala. 671, 71 So. 96.

But I also think that whether the act of defendant in "filling out the proof of death, claimant's statement to collect the life insurance on a man that was dead," was sufficient corroboration, must also depend upon a finding by the jury in that connection that defendant had notice that the man was not dead, or cause to suppose that he was not, whether as an inference from the circumstances or a finding from direct evidence to that effect. While the facts first stated may be sufficient corroboration, they would be so only upon the further finding by the jury that there was notice to defendant direct or implied that insured was not dead. It would be error, in other words, to charge the jury that such conduct of defendant would be corroborative under the statute, if innocently done. Burney v. State, 87 Ala. 80, 6 So. 391.

It has been held that proximity to a crime and opportunity to commit it are alone not sufficient, but there must be some circumstance sufficient to suggest a criminal purpose. Lindsey v. State, supra; Ross v. State, supra; Malachi v. State, supra; Read v. State, 195 Ala. 671, 71 So. 96; Thompkins v. State, 7 Ala.App. 140, 61 So. 479; Cheatwood v. State, 22 Ala.App. 165, 113 So. 482.

I do not think it sufficient corroboration to prove the existence of a perfectly innocent act of defendant, but the act must be such as that the jury could infer from all the circumstances that it was not an innocent act. The doing of a purely innocent act alone does not tend to connect one with a crime. I cannot therefore agree with what seems to be an implication in the opinion of the Court of Appeals to a different effect.

It is said in Malachi v. State, supra, that the corroborative evidence must tend to prove the guilt of defendant. Defendant's explanation of it all was consistent with his innocence. The fact that he filled out the proof without notice of its falsity,...