GAINES v. STATE, 22 Ala. App. 507 (1928)

117 So. 486

GAINES v. STATE.

7 Div. 409.Court of Appeals of Alabama.
June 19, 1928.

Appeal from Circuit Court, Cleburne County; R. B. Carr, Judge.

Dolphus Gaines was convicted of distilling and possessing a still, and he appeals. Reversed and remanded.

The following charges were refused to defendant:

“(1) The court charges the jury that if you do not believe beyond a reasonable doubt the testimony of Jackson and Lynch that defendant was seen by them 30 or 40 yards from the still and threw down wood and ran away from the still as said officers approached, you should find defendant not guilty.

“(2) The court charges the jury that if you believe from the evidence that Jackson and Lynch were mistaken as to the identity of defendant as they approached the still and that they are now mistaken in their testimony as to defendant being near the still when said still was raided, your verdict should be not guilty.

“(3) The court charges the jury that defendant cannot be convicted upon the testimony of Walter Daugherty unless corroborated by testimony of witnesses as to material elements of the offense, and that unless you believe the testimony of Jackson and Lynch or one or both beyond a reasonable doubt you should find defendant not guilty.

“(4) The court charges the jury that you cannot convict the defendant under the first count of the indictment.

“(5) The court charges the jury that you cannot convict the defendant under the second count of the indictment.

“(6) If you have a reasonable doubt as to the truth of the testimony of Lynch and Jackson you cannot convict the defendant.

“(7) The court charges the jury that if you have a reasonable doubt from the evidence as to the truth of the testimony of state’s witnesses Lynch and Jackson you should find defendant not guilty.

“(8) The court charges the jury that defendant cannot be convicted upon the testimony of Walter Daugherty unless corroborated by testimony of other witnesses tending to connect the defendant with the commission of the offense with which he is charged, and that unless you believe from the evidence beyond a reasonable doubt that Jackson or Lynch have testified truthfully in this case, you cannot find the defendant guilty.”

Merrill Field, of Anniston, for appellant.

Charges 1, 2, 3, 6, 7, and 8 should have been given. Mills v. State, 1 Ala. App. 76, 55 So. 332; Code 1923, § 5635; McDaniels v. State, 162 Ala. 25, 50 So. 324; Alexander v. State, 20 Ala. App. 432, 102 So. 597; Boles v. State, 21 Ala. App. 356, 108 So. 350. Charges 4 and 5 were erroneously refused. Barker v. State, 20 Ala. App. 564, 103 So. 914; Hester v. State, 21 Ala. App. 315, 108 So. 78; Suggs v. State, ante, p. 311, 115 So. 289.

Charlie C. McCall, Atty. Gen., for the State.

Brief did not reach the Reporter.

RICE, J.

Appellant was convicted, generally, upon a trial under an indictment in two counts, one charging him with unlawfully distilling prohibited liquors, the other charging him with unlawfully being in possession of a still, etc., to be used for the purpose of manufacturing prohibited liquors. The testimony on the part of the state consisted of that of two officers and one Daugherty, who states that he was working at the still which was admittedly found, and which was at the time in operation making whisky. The two officers each testify to seeing appellant about 30 yards from the still, walking toward it with an armful of wood (the still being a “wood burner”), and that he threw down his wood and ran. Daugherty testified that appellant and he were each working at the still making whisky.

No questions are presented for our consideration other than the propriety vel non of the trial court’s action in refusing to give at appellant’s request certain written charges. His attorneys have simplified our labors by filing an excellent brief on this appeal, and we will proceed to briefly mention the charges referred to, in the order in which they are discussed by the able counsel:

Page 508

“A conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.” Code 1923, § 5635.

In this case, an analysis of the testimony demonstrates that, other than the fact of the commission of the offense, which is expressly declared to be insufficient, the only testimony tending in any way to corroborate that of Daugherty, the confessed accomplice, to the effect that appellant was guilty, was that of the two officers, Jackson and Lynch, that they saw appellant 30 yards from the still, going toward it with a load of wood etc.

In line with the excellent reasoning in the opinion in the case of Malachi v. State, 89 Ala. 134, 8 So. 104, it would appear that in this case, unless the jury believed beyond a reasonable doubt the testimony of either Jackson or Lynch that appellant was seen near the still in question, etc., there would be no corroboration of the accomplice Daugherty, and the appellant should be acquitted. Hence it was prejudicial error to refuse appellant’s written requested charges Nos. 3 and 8. It was unnecessary to a conviction that the testimony of both Lynch and Jackson be believed. Charges 1, 2, 6, and 7 were therefore refused without error.

It was proper to refuse written requested charges 4 and 5. The evidence made a case for the jury.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.