Smith v. State

Decision Date23 May 1935
Docket Number3 Div. 116
Citation230 Ala. 413,161 So. 538
PartiesSMITH v. STATE.
CourtAlabama Supreme Court

Appeal from Circuit Court, Escambia County; F.W. Hare, Judge.

John I Smith was convicted of murder in the second degree, and he appeals.


Acquittal of person jointly indicted with defendant for murder subsequent to defendant's trial and conviction held not to entitle defendant to new trial, notwithstanding contention that defendant did not fire fatal shot but merely aided and abetted in the killing, in view of statute abolishing distinction between accessories before the fact and principals and between principals in first and second degree and requiring all persons concerned in commission of felony to be tried as principals (Code 1923, § 3196).

The appellant, John I. Smith, was jointly indicted with King Smith, Zell Smith, Jim Smith, Dan Smith, A.Z. Smith, and John Archie Stacy, for the murder of Horace Cain. On appellant's motion he was granted a severance, was tried and convicted of murder in the second degree, and his punishment fixed at twenty-five years' confinement in the penitentiary.

The evidence is without dispute that appellant John I. Smith King Smith, Zell Smith, Dan Smith, and A.Z. Smith are the sons of Jim Smith, and that witness Stacy and the deceased Horace Cain, were the sons-in-law of said Jim Smith; that about three weeks before the killing, Cain and his wife had separated because of Cain's abuse of the wife; that the wife and one of their children had been brought by the father, Jim Smith, to his home soon after the separation where she had remained; the other child was with its father the deceased; that bad blood or ill feeling existed between the Smiths and Cain as the result of said separation and abuse.

At the time of the killing Jim Smith, the father of Mrs. Cain, lived about one and a half miles from Canoe; the appellant John I. Smith and King Smith lived with their father, and Dan Smith's residence was located between Jim Smith's and John Smith's, a negro, where the killing occurred. A.Z. Smith was not living with the father, but was "living on the Benson farm."

Zell Smith spent the night before the killing next morning at Dan Smith's house, but was at Jim Smith's house early in the morning before the killing. Stacy and his wife, who lived one and one-half miles from Jim Smith, spent the night at Jim Smith's house. The residence of Dan Smith was about two hundred yards from Jim Smith, and the negro's house was about one-half mile from Dan Smith.

When Cain was shot he was between the barn and the house of John Smith, and the body fell near the steps leading into the kitchen; upward of two hundred shot entered his body.

The negro's house was on the edge of a field, bordered by a woodland three-quarters of a mile in depth, and the barn was immediately back of the house next to the woodland. Bowman's Cemetery was on the opposite side of this woodland just off the highway. A settlement road led from the cemetery to John Smith's house, and a narrow lane led from near John Smith's toward Jim Smith's residence.

The killing occurred around 8 o'clock on Sunday morning.

The evidence further shows that Cain rode on horseback through the woodland along the settlement road to John Smith's house, accompanied by his brother, Comer Lee (Pal) Cain, who stopped in the woodland some distance from John Smith's to await Cain's return from his mission. There was evidence tending to show that Cain's purpose was to send a letter by or through Dan Smith to his wife. The letter was found on Cain's person after his death punctured with several shots, and was subsequently delivered to Mrs. Cain by the sheriff. When Cain arrived at John Smith's, he hitched his horse at the mule lot back of the house and sent a messenger, John Smith's boy, to Dan Smith, informing Dan that he was at the Negro's house and wished to see him.

Said John Archie Stacy was called and testified, as a witness for the state, that Dan Smith came to the residence of Jim Smith on that Sunday morning and "told Mr. (Jim) Smith that Horace Cain was over at old negro John's house; that his boy had come over there and told him he was over there, and Dan told Mr. Smith that if he wanted to kill him now was the best time to kill him and get by with it. *** John I. Smith, King Smith and A.Z. Smith and Zell and I went over to the negro John Smith's house that morning. All of these whom I mention are brothers. We went over there in an automobile. We left the automobile at the Bowman Cemetery. *** We walked from the place where we parked the car over to John Smith's, the negro's house. Four of us had shotguns and one had a pistol. John I. had the pistol and Zell, A.Z., King and I each had a shotgun. When we got up to John Smith's house, I saw Horace Cain there. He was standing up side of the wire fence on the right-hand side of the fence. *** he was standing with his feet in the wire whittling on the post on the right-hand side and old negro John was on the inside. *** We come up behind the barn through the field, so that he couldn't see us. And his horse was hitched at the post and this horse looked around. The horse was Horace Cain's, and he looked around and saw us and at that time Horace looked and stepped over the fence on the inside and walked around this way (indicating) to the house and turned just like you were going in the door right here (indicating). He did not say anything to us. We did not say anything to him. A.Z. stepped over the fence on the right-hand side of the barn and he shot this way (indicating). I mean A.Z. Smith. He shot with a single barrel shotgun. King, Zell and I shot also about the same time. *** John I. Smith, the defendant, was standing right this side of me. He had his pistol there and it was in shooting position, but he didn't shoot. When we started shooting the dead man didn't start running nowhere. He just eased over on his face. He did not shoot at all. He didn't ever get his pistol out. He had a pistol with him. I saw it later. It was in his pocket and John I. taken (took) it out of Horace's pocket and wrapped his pocket handkerchief around the stock of it and shot it off twice in the air and snapped it once that I heard. *** He did not raise the man up. It was in his hip pocket. When John I. shot it off twice in the air and snapped it once, he and King and old negro John raised him up. John I. placed the pistol in Horace's hand. King taken (took) hold of one arm and old negro John taken (took) hold of the other one and they raised him up and John I. placed the pistol in his hand and then they eased him back down with his head in this position. That was the last I saw. Then, John I. and King told old John to say that Dan killed him, that Dan Smith had killed Horace. Dan was not over there. They said that they would give him twenty acres of land and $40.00 in money. *** In going over there that Sunday morning to the old negro John's house where the killing took place, Mr. Ferd McNeil was in the front yard of his house when we passed by. I saw him in the yard. I just don't know how close we were to him when we passed by, but I imagine about thirty feet. On the way over to the negro's house, I saw a red horse off to the side of the road. Nobody was on the horse, but there was a man sitting down by a log. I taken (took) it to be Pal Cain, Comer Lee Cain, a brother of the dead man. I couldn't say just how close we came to him. He was away from the road a little piece, down there towards the branch head. After the shooting, Zell and A.Z. went back to the graveyard and got the automobile, and John I. and King and myself walked down the lane back to the house. *** I just wouldn't say positive whether we all got back to the house ahead of the automobile, or after the automobile got there or about the same time. But we went on back and I went in the house and I carried a double barrel shotgun and a single barrel shotgun and put them up in the house. I used a single barrel and I got the double barrel gun from King. When we got back I saw Dan Smith around his house."

Stacy also testified that after the separation of Cain and his wife, the appellant John I. Smith and King Smith tried to get witness to let them kill Cain at his (Stacy's) house and claim that he (Stacy) did it in self-defense; that previous to the killing Mary Cain, the wife of the deceased, wanted witness to go with her to the gin in Canoe to see the child, and John I. and King carried guns along and said that if Cain was there they were going to take him or kill him; that the killing was in 1930; that he first told one Richard Purvis about the occurrence, during the first year of Sheriff Byrne's incumbency, and went before the grand jury in March, 1934.

McNeil testified:

"At the time Horace Cain was killed I was living about a quarter of a mile just this side of the overhead bridge on the left. This overhead bridge is over the L & N. Railroad between Warbeek and Canoe. Yes, sir, in that green house around the curve there. Horace Cain was killed on Sunday. Yes, sir, I knew the Smith's car. Yes, sir, that car passed my house early that morning prior to the shooting. Well, I couldn't say who was in it; I don't know. I suppose the Smiths were in there, some of them was (were). I don't know how many. I couldn't say which ones it was. I looked up and saw that car come by. That's one way from the Smith's house out the way they get to the Bowman Cemetery. I shouldn't say that's the best road. There's not any good road. It's bad either way. Yes, sir, they followed the highway after getting to the overhead bridge. Yes, sir, the other way you would have to go through that narrow lane between my place

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