Shamberger v. State

• Decision Date: 19 June 1930
• Docket Number: 2 Div. 964.
• Citation: 221 Ala. 538,130 So. 70
• Parties: SHAMBERGER v. STATE.
• Court: Alabama Supreme Court

130 So. 70

221 Ala. 538

SHAMBERGER v. STATE.

2 Div. 964.

Supreme Court of Alabama

June 19, 1930

Rehearing Denied Oct. 9, 1930.

Appeal from Circuit Court, Choctaw County; T. J. Bedsole, Judge.

Dan Shamberger was convicted of murder in the second degree, and he appeals.

Reversed and remanded.

Thos F. Seale, of Livingston, Harwood & McQueen, of Tuscaloosa William Lindsey and D. M. Boswell, both of Butler, and Martin Miller, of Meridian, Miss., for appellant.

Charlie C. McCall, Atty. Gen., for the State.

SAYRE J.

On defendant's challenge it appeared that one Alexander called as a juror, was a brother of defendant's deceased wife, and that she had left surviving her a daughter. The rule is that, if the marriage has resulted in issue who is still living, the relationship by affinity continues. 2 Corpus Juris 379. The state's challenge was properly allowed. Code, § 8610, subd. 4.

Defendant was indicted, along with two others, for the murder of Berry Brown and was convicted of murder in the second degree. A severance was ordered. James Turner, an old negro, who lived on defendant's place, testified for the state that on February 5, 1929, defendant on trial, Dan Shamberger, and his brother Horace, with threats against his life, commandeered-we are trying to state the matter briefly-him and Morris Chaney, another old negro of the same sort, took them to the site of an old sawmill on the margin of an 1,800-acre swamp, where they saw the body of deceased, freshly slain, lying on the ground; that they covered the body with sawdust and little "chunkins"; that in the night of the same day witness and Morris Chaney were required to place the body on a truck and go with it to a tree top, meaning the top of a tree which had fallen or been felled, in that part of the swamp which belonged to defendant and which was "posted," where they deposited the body, covering it with leaves; that on the night of Thursday, the 7th, they (the negroes) were required to assist in the removal of the body to Ticabum creek, about one-half a mile away, into which, with weights attached, it was thrown. The body was recovered, two months later, from the Tombigbee river at a point five or six miles below the mouth of Ticabum.

The state's solicitor, over the objection and exception of defendant, was permitted to ask this witness: "Did you point out to us, Mr. Christopher [a deputy sheriff], and myself, and Clarence Smith and others, the Pole Ford near the sawmill site where you first saw the man dead?" The witness answered in the affirmative. And this question: "Did you point out the sawmill site there?" which was answered affirmatively. And this: "Did or not you point out to Mr. Christopher and myself and Clarence Smith and others the spot where you first covered up the body of Berry Brown?" And the following: "Did you point out to us the point on Ticabum Creek where you and Morris were ordered to lay the body dow?" And this: "Did you point out to us the place in the water-I mean Mr. Christopher and myself and others-the place in the water where these three men, Dr. Dan and Mr. Horace and Mr. Grady Inzer, threw the body into the water?" These questions were all answered in the affirmative, and exceptions were in each case duly reserved.

We are constrained to hold that these rulings were error to reverse. In Green v. State, 96 Ala. 29, 11 So. 478, 479, the court said: "A witness cannot corroborate himself by introducing other witnesses to prove that he made the same statement to them to which he deposed, or that he showed...