Roberts v. State

• Decision Date: 30 June 1933
• Docket Number: 7 Div. 954.
• Citation: 25 Ala.App. 477,149 So. 356
• Parties: ROBERTS v. STATE.
• Court: Alabama Court of Appeals

149 So. 356

25 Ala.App. 477

ROBERTS v. STATE.

7 Div. 954.

Court of Appeals of Alabama

June 30, 1933

Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.

Willie Roberts was convicted of murder in the second degree, and she appeals.

Reversed and remanded.

C. J Scott and C. A. Wolfes, both of Fort Payne, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

BRICKEN, Presiding Judge.

The indictment contained three counts, each count charging this appellant and her 16 year old son with the offense of murder in the second degree. Count 2 was charged out by the court and properly so, as there was no evidence in the case to sustain the material allegations of said count. A severance was granted, and this appellant, Willie Roberts, a woman, was put to trial on counts 1 and 3 of the indictment, wherein she was charged with killing J. W., alias William, alias Shorty, Roberts by choking him with a rope (first count) and by strangling him with a rope, in the third count. The deceased named in the indictment was the husband of this appellant, and the stepfather of her son, Albert Woods. The evidence disclosed they had been married about 3 years and lived together during that period as man and wife. The jury returned a general verdict of guilty as charged in the indictment, and fixed her punishment at imprisonment for 10 years, whereupon the court duly sentenced her to imprisonment in the penitentiary for 10 years in accordance with the verdict of the jury. From the judgment of conviction thus pronounced and entered this appeal was taken.

Appellant's first insistence of error is the action of the court in overruling her objections to testimony of witnesses as to a purported confession made by her. This on the grounds that the corpus delicti had not been proven at the time this testimony was offered by the state and allowed by the court. It is the law that the corpus delicti must be established independently of the confession of the accused; and in the case at bar we are of the opinion that this rule had been sufficiently met by the evidence adduced. The testimony of the examining physician, coupled with ample other evidence, all without dispute, in our opinion established the corpus delicti. By this evidence it was disclosed that the body of Roberts (the deceased named in the indictment) was found tied in a sack and hidden in cotton seed in his barn; and his hands were tied in front of him, and a towel around his neck. There was ample evidence to sustain the physician in his statement that his death was due to strangulation. There were marks of violence on his face and neck which, in our opinion, also tended to establish the fact that his death was not the result of accident, natural causes, or by suicide, but could only have been caused by the acts of another. Moreover, if it should be conceded that evidence of her confession was inadmissible when offered, it cannot be questioned that it was rendered admissible by subsequent evidence adduced, and, where this is true, even if error prevailed primarily, it would be cured. Carr v. State, 17 Ala. App. 539, 85 So. 852; Tarwater v. State, 16 Ala. App. 140, 75 So. 816; Rollins v. State, 18 Ala. App. 354, 92 So. 35.

There was no error in the ruling of the court in allowing the state to offer evidence relative to the odor about the body of deceased at the time it was found in the cotton seed. This evidence not only related to the locus, but was also admissible as corroboratory of the testimony of the physician that the homicide had occurred some 3 days before he was called in to examine the body. We cannot accord to appellant's insistence that "this evidence could only serve to prejudice the minds of the jury against her."

Appellant contends there was a variance in the indictment and the proof as to the name of deceased, and that error is thus shown. An indictment charging the offense of murder must be so certain as to the party against whom the offense was committed that the person indicted may know and understand whom he or she is charged with having killed. Page v. State, 61 Ala. 16. But, as stated in Langston v. State, 8 Ala. App. 129, 63 So. 38, 39, "It cannot be said, as a matter of law, that this is always best accomplished by stating" the true name of deceased. "He may be as well, if not better, identified by a name by which he was generally known and called, though that was not his true name." The wisdom of this rule is manifest by the testimony in this case. The deceased was here named as J. W. Roberts, alias William Roberts, alias Shorty Roberts, and it conclusively appears that he was known in this state only by the names averred in the indictment. He was known and called "William" or Shorty Roberts by everyone during his 3 years of living in this state, and during this period he was never known or called otherwise. If, as a matter of fact, as some of the testimony tends to show, he was known and called by the name of William Newton Tyler, or by W. N. Tyler by the people who knew him in Oklahoma, the state where he formerly resided, it would be wholly immaterial here for the reasons stated. He was never known or called Tyler during his sojourn of about three years in this state. Therefore this insistence cannot avail this appellant, and the trial court properly so ruled.

As stated, this appellant was the mother of her coindictee Albert Woods, age 16, her son by a former marriage. It appears that the difficulty resulting in the death of deceased was between this boy and deceased, and her insistence is she was acting in defense of her own child. Her version is best stated in her...