Sweeney v. State

• Decision Date: 21 June 1932
• Docket Number: 7 Div. 875.
• Citation: 143 So. 586,25 Ala.App. 220
• Parties: SWEENEY v. STATE.
• Court: Alabama Court of Appeals

143 So. 586

25 Ala.App. 220

SWEENEY v. STATE.

7 Div. 875.

Court of Appeals of Alabama

June 21, 1932

Rehearing Denied June 30, 1932.

Appeal from Circuit Court, Talladega County; W. B. Merrill, Judge.

George Sweeney was convicted of grand larceny, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Sweeney v. State (7 Div 145) 143 So. 588.

p>Page Riddle & Riddle, of Talladega, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

SAMFORD, J.

The defendant was the trusted employee of Talladega Hardware Company, a partnership, etc., and as such had the custody of a stock of gun shells and building material belonging to the partnership. The shells were locked in a separate room from the general stock carried in the warehouse, and this defendant and the partners were the only ones who had a key to this room. The shells were in cases of 500 each, and each case had a value of $20. Upon a check of the stock of shells 19 cases were gone. One case of the shells was traced through the drayman (Mose) to a man named Fuller. Mose testified that upon instruction from defendant he delivered the shells to Fuller, collecting from him $9 which he gave to defendant. Other shells were shown to have been disposed of by defendant to other parties, at prices greatly disproportionate to their real value. It was also shown that defendant had sold to another party some doors and windows from the warehouse and that the doors and windows were the property of the Talladega Warehouse Company. It was shown by the evidence that the defendant was the custodian of the warehouse and its contents and that deliveries from the warehouse were only to be made on orders from the office, which was located in a different part of the city. It was also shown by the evidence that the shells and doors and windows above referred to were not delivered or disposed of by an order or authority of the owner.

The defendant invokes the protection of the statute, Code 1923, § 5635, which is that a conviction for a felony cannot be had on the uncorroborated testimony of an accomplice. He further contends that the drayman, Mose, was such accomplice and that his testimony was not corroborated.

Before the prohibition contained in the above section of the Code can be invoked in favor of a defendant, it must clearly appear that the witness giving such testimony is an accomplice, and the fact that such witness is also indicted for the same offense does not per se raise a presumption against the state that he is an accomplice. Moore v State, 15 Ala. App. 152, 72 So. 596; Horn v State, 15 Ala. App. 213, 72 So. 768.

Where there is doubt whether a witness is in fact an accomplice, and the testimony is susceptible of different inferences on that point, that question is for the jury and not for the court. Horn v. State, 15 Ala. App. 213, 72 So. 768. In this case the facts as testified to by the witness made the question of whether the witness Mose was an accomplice one of fact for the jury and the court so instructed them.

Moreover there was evidence tending to corroborate Mose, even if he was found to be an accomplice. While the corroboration must tend to connect the defendant with the commission of the offense, it need...