Sheppard v. State

• Decision Date: 11 May 1911
• Citation: Sheppard v. State, 172 Ala. 363, 55 So. 514 (Ala. 1911)
• Parties: SHEPPARD v. STATE.
• Court: Alabama Supreme Court

55 So. 514

172 Ala. 363

SHEPPARD v. STATE.

Supreme Court of Alabama

May 11, 1911

Appeal from Circuit Court, Chilton County; W. W. Pearson, Judge.

Alice Sheppard was convicted of murder, and she appeals. Affirmed.

The facts sufficiently appear in the opinion. The following charges were refused to the defendant. (1) and (2) The affirmative charges. (4) "I charge you, gentlemen of the jury, that unless you find from all the evidence in this case beyond a reasonable doubt that the defendant Alice Sheppard conspired with her codefendant and Emma Smith to commit an unlawful act upon the deceased, Houlditch, and that she did not participate in the killing of said Houlditch, you must find the defendant Alice Sheppard not guilty." (5) "I charge you, gentlemen of the jury, that if you find from all the evidence in the case beyond a reasonable doubt that although Alice Sheppard made an attack upon the deceased, Houlditch, if you so find from the evidence, yet unless you further find from all the evidence in the case that said attack was made in pursuance of the common purpose of the other defendant, and that she did not participate in the killing of the deceased, you must find the defendant Alice Sheppard not guilty." (6) "I charge you gentlemen of the jury, that if you find beyond a reasonable doubt from all the evidence in the case that the defendant Alice Sheppard, after she had attacked Cleve Houlditch, if you find that she did attack said Houlditch, she abandoned said attack, and did not participate in the killing of said Houlditch, you cannot find the defendant Alice Sheppard guilty of any higher offense than assault and battery."

J. O Middleton, for appellant.

Robert C. Brickell, Atty. Gen., and William L. Martin, Asst. Atty Gen., for the State.

SIMPSON J.

The appellant was indicted, with Emma Smith, Wiley Young, and William McCary, for the murder of Cleve Houlditch. Emma Smith pleaded guilty, appellant and Wiley Young were convicted of murder in the first degree, and William McCary was acquitted. The theory of the state is that a conspiracy existed among all of the defendants to murder said Houlditch. All of the defendants had been at a supper, and left at the same time. The deceased was found, with his throat cut, his skull crushed, and other severe wounds in the side, either of several being, according to the opinion of physicians, sufficient to have produced death.

There was no error in overruling the objection to the testimony of Buck Davis that, as the defendants were all going out the gate, Wiley Young, who was a little behind the others, said, "I got to go, too; I am with them; I am onto him; I see him; I am onto him." It was for the jury to say, under all the evidence, whether the remark referred to the deceased. A conspiracy may be proven by circumstantial evidence, and this remark, besides tending to show the animus of Wiley Young (who is not appealing), was a circumstance to be considered by the jury as to the common design. Martin v. State, 89 Ala. 115, 119, 8 So. 23, 18 Am. St. Rep. 91.

Even if this defendant conceived that the remark furnished no evidence against her, her proper course would have been to request the court to limit the application of the evidence. Williams v. State, 81 Ala. 1, 10, 1 So. 179, 60 Am. Rep. 133; Ponder v. Cheeves, 104 Ala. 307, 314, 16 So. 145.

At the close of the state's evidence the defendants requested the court to give the general charge as to William McCary, which was refused; the court saying, "We won't try these cases piecemeal." There was no error in this. The court could not be called upon to give a charge until all of the evidence for both the state and the defendants was in.

The defendant...