Skumro v. State

• Decision Date: 19 November 1936
• Docket Number: 2 Div. 91
• Citation: 234 Ala. 4,170 So. 776
• Parties: SKUMRO v. STATE.
• Court: Alabama Supreme Court

170 So. 776

234 Ala. 4

SKUMRO v. STATE.

2 Div. 91

Supreme Court of Alabama

November 19, 1936

Appeal from Circuit Court, Choctaw County; A.S. Johnson, Judge.

Joe Skumro was convicted of murder in the second degree, and he appeals.

Affirmed.

Whether witness is accomplice may be question of law for court or a fact for jury. Code 1923, § 5635.

The appellant was jointly indicted with Wash Daily, Wes Berry Eugene Mizelle, and Nollie Mizelle for the murder of Abe Baxter. A severance was granted, and on his separate trial appellant was found guilty of murder in the second degree.

Eugene Mizelle, as a witness for the state, testified substantially as follows:

Abe Baxter was the uncle of the witness, and witness had made his home with Baxter. A short time previous to the killing, which occurred in May, 1932, Baxter and witness had returned from a visit to Arkansas. It was planned that after Baxter had gotten more money they would again go to Arkansas. Baxter sold a barber shop, and on the morning of the day of his death left home in the company of Wash Daily, who had come by his house, to collect the money for the shop. In the afternoon witness left Baxter's house and at appellant's house joined appellant and Daily, going with them in a truck down the road to meet Baxter. When they met a conversation took place between Daily and Baxter, in which Daily tried to borrow some money from Baxter, and which Baxter refused to lend. At this time both appellant and Daily were armed with guns, and Baxter was armed. Thereafter Baxter was persuaded to get in the truck, and the party drove to appellant's camp, known as the Stremick place, where Wes Berry and Nollie Mizelle were already waiting. At the Stremick place Daily renewed his effort to borrow money from Baxter; Baxter agreed to lend him a smaller amount and turned to walk away. Thereupon Daily threw his gun on witness and commanded him to shoot Baxter. Witness shot Baxter in the shoulder with his own gun, because Daily said he would shoot witness if he did not. Thereupon appellant shot Baxter with a shotgun, and Daily beat him with a timber.

After the killing Baxter's body was placed in a room at the Stremick house, and the door and window nailed up. The body was left there for two days and then removed to the loft of a vacant house known as the Donald place. About a week thereafter witness met appellant, who said the body would have to be moved again, because of the odor and the attraction of buzzards to the place; and that night appellant came with his truck, near the Donald place, and picked up witness and the others of the party (except Daily, who had then been arrested) and went on to the Donald place. There the body of Baxter was taken from the loft and carried to a spring some 50 yards away. A fire was made, water put into the lard can to boil, and appellant tore the body apart and put it into the can. Thereafter the bones, with Baxter's clothing, were put into a sack and lodged in a tree. Still later this sack was removed, carried across the state line into Mississippi, and the contents scattered.

This witness testified further that immediately following the killing of Baxter, and the placing of his body on the porch witness, at the direction of appellant, rifled Baxter's pockets. He found about $1,000 in currency, which he turned over to Daily in appellant's presence. After this, witness went into the house, as he was told to do by Daily and appellant, and heard them on the porch dividing the money. After removal of the body from the Stremick place, some flooring was taken up and two new boards put in.

William Turner, a witness for the state, testified on cross-examination that appellant's general reputation in the community was not good. On cross-examination he testified that the general reputation of Eugene Mizelle in the community was good. Thereupon defendant's counsel asked the witness: "Did you ever hear of him running off and leaving his family?" and "Did you ever hear about his running around with Lola Mae Berry?" The state's objections to these questions were sustained, and defendant reserved exceptions. Witness further testifying said: "Everything I ever heard about him was good."

The following charge was refused to defendant: "K. The court charges the jury that the probability that some other person may have done the shooting and that the defendant had nothing to do with it is sufficient to create a reasonable doubt of the guilt of the defendant and therefore for his acquittal."

B.F. McMillan, Jr., and H.M. Aldridge, both of Mobile, and Christopher & Lindsey, of Butler, for appellant.

A.A. Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen., for the State.

THOMAS Justice.

A phase of this case, such as the corpus delicti, was passed upon in the recent decision of Berry v. State, 231 Ala. 437, 165 So. 97.

It is established by our decisions: (1) That whether there was any evidence corroborating an accomplice as a witness and connecting the accused with the commission of the offense charged, is a question of law for the court; and (2) that its force and effect, or sufficiency, when considered in connection with the testimony of that accomplice and all the other evidence, to establish the accused's guilt of such crime, is a question for the jury, under the statutory requirement for corroboration. Code, § 5635; Berry v. State, supra; Smith v. State, 230 Ala. 413, 161 So. 538; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712; Lindsey v. State, 170 Ala. 80, 54 So. 516; Pearce v. State, 231 Ala. 150, 164 So. 118; Slayton v. State (Ala.Sup.) --- So. ----. ^[1]

It is further established that the corroboration of an accomplice must tend to connect the accused with the commission of the offense; that it need not refer to particular statements testified to by that accomplice, but must strengthen the probative incriminatory force of such accomplice's testimony. Having this effect, it is sufficient to warrant submission of the issues of fact involving defendant's guilt to the jury. Slayton v. State, supra; Berry v. State, 231 Ala. 437, 165 So. 97; Smith v. State, supra; Malachi v. State, 89 Ala. 134, 8 So. 104.

It is obvious, that every case must stand upon its particular facts. Pearce v. State, supra.

The duty to examine the record and evidence of the corpus delicti, and corroboration of the accomplice in the Berry Case, supra, rested upon this court; this has been done. The questions of the corpus delicti and corroboration are presented in the instant case by requested affirmative instructions by the defendant and by his motion to exclude all the evidence for the state. Randolph et al. v. State, 100 Ala. 139, 14 So. 792; Robinson v. State, 222 Ala. 541, 133 So. 578; Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Smith v. State, 230 Ala. 413, 161 So. 538.

The statute for consideration, Code, § 5635, reads as follows: "A conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."

The declared test as to whether a witness is an accomplice within the meaning and requirement of the foregoing statute is thus stated: Could that person have been indicted and convicted of the same offense, and charged as a principal, accessory, or accomplice? As to whether or not he is an accomplice may be, or may become, a question (1) of law for the court, or (2) of fact for the jury, depending upon all the material facts of the case. This may be shown or inferred by circumstantial, as well as positive, evidence. Malachi v. State, 89 Ala. 134, 8 So. 104; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712; Snowden v. State (Ala.App.) 165 So. 410; Arp v. State, 97 Ala. 5, 12 So. 301, 19 L.R.A. 357, 38 Am.St.Rep. 137; Parker v. State, 23 Ala.App. 217, 123 So. 107.

In Slayton v. State, --- So. ----, ^[1] this court recently stated the rule, as follows: "Whether or not such evidence [required corroboration] has been adduced by the state is a question for the court. The credibility and weight of such evidence is a question for the jury. *** But in weighing and considering the evidence the jury is not required to segregate such evidence and set same apart from the other evidence in the case and make a preliminary finding in respect thereto; but it is their duty to consider the corroborating evidence in connection with all the other evidence in the case," and make their finding from the whole evidence. Berry v. State, 231 Ala. 437, 165 So. 97.

In Malachi v. State, 89 Ala. 134, 141, 8 So. 104, 106 Chief Justice Stone reviewed the instant question, and the rule there stated was applied in the Slayton Case, supra. After quoting the long-established rule--"The fullest and ablest discussion of the question which has been called to our attention is Com. v. Holmes, 127 Mass. 424, 34 Am.Rep. 391, note. The opinion was by Gray, C.J., now associate justice of the supreme court of the United States. Among other things, he said: 'Evidence which tends to prove the guilt of the defendant is sufficient by way of corroboration, although it does not directly confirm any particular fact stated by the accomplice; as, for instance, evidence of the possession of stolen goods by one indicted for stealing or receiving them.' In Ross v. State, 74 Ala. 532, the corroboration was not of any...