Woodward v. State
| Decision Date | 08 June 1926 |
| Docket Number | 6 Div. 898 |
| Citation | 21 Ala.App. 417,109 So. 119 |
| Parties | WOODWARD v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Cullman County; J.E. Horton, Judge.
Milton Woodward was convicted of burglary, and he appeals. Affirmed.
F.E St. John, of Cullman, for appellant.
Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen for the State.
This appellant was jointly indicted, with another, one Emmet Wren for the offense of burglary. A severance was had and the defendant, Milton Woodward was alone placed upon trial and convicted. He was duly sentenced to serve an indeterminate term of imprisonment in the penitentiary of not less than two years nor more than three years. From the judgment of conviction this appeal was taken.
We regard the evidence adduced upon this trial as being sufficient to establish the corpus delicti. Appellant's insistences in this connection cannot be sustained. The indictment charged that he (they, naming them), with intent to steal, broke into and entered the pool room, store warehouse, or other building of G.A. Hickman, in which goods, merchandise, or clothing, things of value, were kept for use, sale, or deposit, etc.
If the building in question was that of G.A. Hickman, as the testimony without conflict tends to show, and if the accused broke into and entered said building with intent to steal, it would be immaterial to whom the goods, etc., therein belonged, or whether a larceny was actually committed or not; the larceny and evidence thereof being admissible, under a charge of this character, only for the purpose of showing the intent. The evidence disclosed that the building alleged to have been burglarized was about 80 feet long and about 30 feet wide. The fact that the articles alleged to have been stolen were stolen from a subdivision of said building, described as a little space therein "screened off," said space having been rented from Hickman by one Hale, cannot avail the defendant, and creates no variance between the allegations in the indictment and the proof offered in support thereof.
It appears from the record that this case had been formerly tried in the circuit court of Cullman county, and that said former trial resulted in a disagreement of the jury and a mistrial was entered. Upon the first trial the codefendant Emmet Wren volunteered to testify and did so testify upon said trial. This he had a right to do, and, having so elected, his testimony upon said trial was competent and legal evidence. Upon this, the second trial, said Wren was offered as a witness for the state, and he testified upon this trial. Upon being further interrogated by the state as to the facts and circumstances touching or relating to the alleged burglary, he was advised by the court that "he could refuse to answer the questions if he did not want to." He availed himself of this right, and thereafter, in response to the numerous questions propounded to him by the solicitor, stated: "I refuse to answer the question." On this trial he gave no testimony other than as stated above. Thereupon the state called as witnesses J.H. Nix, Ira Childs, and W.T. Willoughby, each of whom testified they were present at the former trial of this case and heard Emmet Wren testify as a witness in this same case, and that said Wren on that occasion was examined by the state's counsel and cross-examined by defendant's counsel. Whereupon each of these witnesses, in the order named, was asked to tell the jury what Emmet Wren swore upon the former trial of this case. The defendant in each instance interposed objection, and, as grounds of objection stated, "that the witness, Emmet Wren, is not out of the state, and not beyond the jurisdiction of the court, and because no proper predicate has been laid for the purpose of proving his testimony on the former trial, and because it calls for illegal, irrelevant, and immaterial testimony, because the defendant is entitled to be confronted by the witness against him, and because it is a violation of the constitutional rights, and because it calls for hearsay testimony, because there is better evidence of what the witness testified to on the former trial, because it is in the nature of a confession and the corpus delicti has not been proven, and because you cannot prove the corpus delicti by the confession of the defendant or his accomplice."
The objection in each instance was overruled, and defendant excepted. Each of the three witnesses named was thereupon permitted to testify as to what said Emmet Wren swore on the former trial in the circuit court when examined as a witness in this same case.
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