Smith v. State
Decision Date | 23 May 1935 |
Docket Number | 3 Div. 116 |
Citation | 230 Ala. 413,161 So. 538 |
Parties | SMITH v. STATE. |
Court | Alabama 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.
Affirmed.
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
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:
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