Yarber v. State

Decision Date03 October 1978
Docket Number6 Div. 298
Citation368 So.2d 868
PartiesSamuel YARBER v. STATE.
CourtAlabama Court of Criminal Appeals

Frederick A. Erben of Beddow, Fullan & Vowell, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and James L. O'Kelley, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

Kidnapping; sentence: ten years imprisonment.

This case is another in a series of cases arising out of the bizarre and gruesome kidnapping and double murder of Mrs. Clarice Knabe and Ronald Harvey White. The immediate case is on appeal from a conviction for the kidnapping of Mrs. Knabe which occurred prior to her murder. The facts of this entire tragedy are set out at length in Yarber v. State, Ala.Cr.App., [Ms. April 19, 1977, 6 Div. 195], and need not be restated here. Also see: Miles v. State, Ala.Cr.App., 343 So.2d 801 (1977), cert. denied, Ala., 343 So.2d 806.

I

Appellant's first contention on appeal is that he was erroneously convicted on the uncorroborated testimony of an accomplice, Danny Ray Miles, alias Mylar. Miles, who has also been tried and convicted for the dual murders, testified at this trial that he had been present during all the occurrences, but disclaimed any connection with planning or carrying out the crimes. Appellant presented no evidence at trial to the contrary. For aught appearing from the testimony before the jury, the fact that appellant acted alone in conceiving and perpetrating the crime remained substantially uncontradicted.

Whether or not Miles was an accomplice in this crime was at most a disputed fact. Yarber's trial for this crime must be reviewed here as if the alleged accomplice Miles had never been tried and convicted. The fact that Miles' murder conviction arose from the identical deeds under consideration here had no bearing on the trial below, nor here on appeal, on the question of his complicity Vel non with appellant in this cause. Ex parte State of Alabama ex rel. Attorney General (Re: Samuel Yarber v. State of Alabama) [Ms. July 14, 1978, S.C. 2622] (1978).

We point out first that the mere presence of a witness at the scene of a homicide, without more, is insufficient to show the witness's complicity in the crime. Taylor v. State, 49 Ala.App. 433, 272 So.2d 905 (1973). Miles' testimony was that he was merely an unwilling witness to the entire episode. Thus, the evidence presented by the State through Miles' testimony did not undisputedly establish his complicity. Therefore, a question of fact was presented for the jury as to whether or not Miles was an accomplice, and the judge so charged the jury. "Where the issue of whether the state's witness was an accomplice is for the jury, the denial of the accused's motion to exclude the state's evidence for insufficient corroboration is not error." Jacks v. State, Ala.Cr.App., 364 So.2d 397 (1978). Miles' complicity Vel non having been a disputed issue at trial, we find no error in the trial court's refusal to grant appellant's motion to exclude.

Further, even assuming arguendo Miles' complicity in the crime, the other evidence presented in the case was sufficient in its corroboration of Miles' testimony to sustain appellant's conviction of this crime. Ex rel. Attorney General, supra.

II

Appellant argues the prosecution against him should have been dismissed or the indictment quashed because of a breach of promise of immunity made by law enforcement officers to appellant. We do not agree. As this court firmly stated in Yarber, supra, law enforcement officers are without question totally lacking in power to authorize or grant immunity from arrest or prosecution to one criminally culpable under the laws of this state. Any right of an accused not to be prosecuted because of such a promise of immunity is equitable only. Breach of such a promise cannot be pled in bar of an indictment, as grounds for dismissal of the prosecution, or as grounds for reversal on appeal. Long v. State, 86 Ala. 36, 45 So. 443 (1889); Yarber, supra.

III

Appellant contends that the trial court's five month delay in ruling on his motion for speedy trial was a denial of his rights under the Sixth Amendment of the United States Constitution. Appellant's argument is again without merit. Appellant was arraigned on January 15, 1976, and Orally moved for a speedy trial. The record reflects, however, no attempt by appellant whatsoever to pursue a hearing or ruling on his motion. Further, the record reveals that when the motion was heard by the trial court at the opening of the case on June 14, 1976, the case had then twice been continued once because of a death in the family of appellant's counsel, and once because of a death in the trial judge's family. Additionally, the record shows that a companion trial of appellant's alleged accomplice upon the same facts and requiring the same witnesses as the instant cause was held in the interim period of time.

In Broadnax v. State, 54 Ala.App. 546, 310 So.2d 265 (1975), this court enunciated the requirements necessary to raise the issue of speedy trial in light of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Suffice it to say, length of time is only one factor to be considered in reaching a determination in this area. The reason for delay as well as any actual prejudice to the defendant's rights must be weighed in the balance also. Radford v. State, Ala.Cr.App., 348 So.2d 880 (1977). The five month delay urged here as fatal to the State's cause is insufficient in and of itself to show a denial of appellant's...

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9 cases
  • Yarber v. State
    • United States
    • Alabama Court of Criminal Appeals
    • October 27, 1981
    ...So.2d 1231 (Ala.Cr.App.1978), reversed, 375 So.2d 1231 (Ala.1979), on remand, 375 So.2d 1236, (Ala.Cr.App.1979). See also Yarber v. State, 368 So.2d 868 (Ala.Cr.App.), cert. denied, 368 So.2d 871 (Ala.1978); Miles v. State, 343 So.2d 801 (Ala.Cr.App.), cert. denied, 343 So.2d 806 Appellant'......
  • State v. Sealy
    • United States
    • Alabama Court of Criminal Appeals
    • October 17, 1997
    ...power to authorize or grant immunity from arrest or prosecution to one criminally culpable under the laws of this state." Yarber v. State, 368 So.2d 868 (Ala. Cr.App.), cert. denied, 368 So.2d 871 (Ala. 1978). "Breach of such a promise" of immunity by a law enforcement officer "cannot be pl......
  • State v. Seneca
    • United States
    • Alabama Court of Criminal Appeals
    • August 14, 1998
    ...power to authorize or grant immunity from arrest or prosecution to one criminally culpable under the laws of this state.' Yarber v. State, 368 So.2d 868 (Ala.Cr.App.), cert. denied, 368 So.2d 871 (Ala.1978). `Breach of such a promise' of immunity by a law enforcement officer `cannot be pled......
  • State v. Norris
    • United States
    • Alabama Court of Criminal Appeals
    • February 10, 2023
    ...... Sheriff of Clarke County, the State would dismiss the. impeachment case …, and the State would not. bring or pursue criminal charges against [him]." (C. 40.) In support of his motion, Norris cited Ex parte. Yarber , 437 So.2d 1330, 1335 (Ala. 1983), for the. proposition that the State may not enter into a plea. agreement with a defendant and then "be allowed to. repudiate that agreement with impunity." Norris included. with his motion an affidavit from attorney Joe Espy III, who. ......
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