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BRICKEN, P. J.
SAMFORD, J.
On Rehearing.

Cunningham v. StateCunningham v. State

Alabama Court of Appeals
Jan 19, 1932
6 Div. 69.
Reporters:
, ,
Before:
Samford, Bricken

J. M. Ward and Wright, Warren & Searcy, all of Tuscaloosa, for appellant.

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

Briefs did not reach the Reporter.

BRICKEN, P. J.

In a decision of this case we may pretermit a discussion of the innumerable points of decision engendered by the exceptions to the court‘s rulings on the unusual scope of inquiry indulged and resorted to by the state on the trial of this case. The conviction of this appellant in the court below rested solely upon the testimony of state witness Hiram Squires, designated by appellant‘s counsel as, “State witness Extraordinary.” This witness Squires was an admitted accomplice in the commission of the offense charged by the indictment against this appellant. At the close of the state‘s case, the defendant moved the court to exclude the evidence upon the grounds: (1) “That the State has not made out a case against the defendant, nor introduced any evidence which tends to connect the defendant with a commission of the crime with which he is charged. (2) That the evidence introduced by the State in this cause does not corroborate the evidence of the accomplice, Hiram Squires, the state‘s chief witness in this case.” The second ground of this motion was well taken, and the exception reserved to the action of the court in overruling the motion must be and is sustained. The state failed to offer any proof to sustain the rule of evidence provided by section 5635 of the Code 1923. It is therein expressly provided: “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,” etc.

For the error designated, the judgment of conviction from which this appeal was taken is reversed, and the cause remanded.

Reversed and remanded.

Livingston & Livingston, of Tuscaloosa, for appellant.

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

SAMFORD, J.

This defendant was seen carrying a five-gallon jug of whisky from a whisky still. The still was not on land belonging to or under the control of defendant, and there is no evidence tending to connect the defendant with the manufacture of whisky. Another party was attending the still when the officers arrived, and this party was arrested, charged with manufacturing whisky. No one saw defendant do anything except to carry away the five-gallon jug, which they supposed contained whisky. This being all of the evidence tending to connect the defendant with the crime charged, he was entitled to the general charge. Moon v. State, 19 Ala. App. 176, 95 So. 830.

For the refusal to give this charge the judgment is reversed, and the cause is remanded.

Reversed and remanded.

On Rehearing.

Application for rehearing granted. Former opinion withdrawn. Opinion substituted. Reversed and remanded.

Case Details

Case Name: Cunningham v. State
Court Name: Alabama Court of Appeals
Date Published: Jan 19, 1932
Citations: 140 So. 176; 25 Ala. App. 28; 1932 Ala. App. LEXIS 43; 6 Div. 69.
Docket Number: 6 Div. 69.
Court Abbreviation: Ala. Ct. App.
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