Spencer v. State, 5 Div. 166.

• Citation: 154 So. 527,228 Ala. 537
• Decision Date: 26 April 1934
• Docket Number: 5 Div. 166.
• Parties: SPENCER v. STATE.
• Court: Supreme Court of Alabama

154 So. 527

228 Ala. 537

SPENCER v. STATE.

5 Div. 166.

Supreme Court of Alabama

April 26, 1934

Appeal from Circuit Court, Macon County; W. B. Bowling, Judge.

Charles Spencer, alias Simpko, was convicted of murder in the first degree, and he appeals.

Affirmed.

Watkins C. Johnston, of Tuskegee, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

KNIGHT Justice.

The appellant was indicted by a grand jury of Macon county for the offense of murder in the first degree. Upon his trial, he was convicted by a jury duly impaneled and sworn of murder in the first degree, and his punishment fixed by the jury at death, and upon this verdict, he was duly sentenced to death. From the judgment and sentence the appellant prosecutes this appeal.

The record proper shows indictment in proper form, due arraignment of defendant, order setting a day for the trial of the cause, the drawing of a special venire for the trial and service, as the law directs, of a copy of the indictment and a list of the jurors drawn for the trial of the defendant. It thus appears that there are no errors apparent upon the record proper. And, we may add, that counsel appearing here for appellant have not suggested any error in the proceedings appearing upon the record proper.

The evidence shows without conflict that W. A. Reynolds was a night policeman of the city of Tuskegee, Ala., during the month of February, 1933, and that on the night of February 22, 1933, or at an early morning hour of February 23d, he received a pistol shot wound, from which he died.

The testimony further tended to show that the defendant, in company with two other men, came to Tuskegee on the night of the shooting, driving a Ford car. The defendant and his companions were strangers in the place, and after the shooting the defendant's companions made their escape; but the defendant, who was shot at the time the policeman received his pistol wound, was unsuccessful in his efforts to escape, and was captured some little distance from the scene of the shooting.

After his arrest, and while in jail, the defendant made a full confession of his part in the shooting, admitting that he was the man who killed Mr. Reynolds, and that their purpose was to "tie the officer up and rob the jewelry store and probably a dry-goods store."

It is here insisted that the evidence in the case was insufficient to establish the corpus delicti.

There is no merit in the contention. The evidence fully established the death of Mr. Reynolds, that he died as a result of a pistol shot wound, and that the shooting was unlawful. The confession of the defendant aside, there was ample evidence in the case to require its submission to the jury on the question of defendant's guilt.

Charges 2 and 3 were properly refused, as proof of the defendant's guilt was not dependent wholly upon circumstantial evidence. There was in the case direct and positive testimony of the defendant's participation in the crime.

If it be conceded that these charges were free from other objections, they were properly refused under the evidence developed in the case. McCoy v. State, 170 Ala. 10, 54 So. 428; Hall v. State, 130 Ala. 45, 30 So. 422; Hannigan v. State, 131 Ala. 29, 31 So. 89; Dennis v. State, 118 Ala. 72, 23 So. 1002; Green v. State, 97 Ala. 59, 12 So. 416, 15 So. 242. Besides, charge 2 entirely ignored the tendency of the evidence going to show a conspiracy on the part of defendant and his associates to commit a felony, and that the killing of the deceased was done either by defendant or one of his associates in consummation of the common unlawful purpose. Jones v. State, 174 Ala. 53, 57 So. 31; Morris v. State, 146 Ala. 66, 41 So. 274.

Charge 4 was refused to defendant without error. This charge is not hypothesized upon a reasonable probability that some other person may have done the killing, and, like charge 2, ignores the tendency of the evidence going to establish a conspiracy. Goocher v. State, 227 Ala. 337, 149 So. 830; Pitman v. State, 148 Ala. 612, 42 So. 993; Jones v. State, supra.

Charge 5, requested by the defendant, was not only abstract, but predicated a doubt sufficient to acquit the defendant upon evidence of the alibi alone, without regard to the other evidence in the case. Non constat, upon consideration of the whole evidence, the jury might not have entertained a reasonable doubt of the defendant's guilt.

The whole evidence should be considered and weighed; and if after considering it all, including the alibi evidence, the jury...