Ross v. State

74 Ala. 532 | Ala. | 1883

STONE, J.

— In Bowles v. The State, 58 Ala. 335, speaking of flight as an instrument of evidence, we said : “ We think it permissible to prove the fact of flight, and all the facts connected with it, either to increase or diminish the probative force of the fact itself.” This language clearly implies that flight itself, by one suspected or accused of crime, has some probative force, the weight of which is for the jury to determine. — See Whar. Cr. Ev. § 750. Corroborative testimony, to meet the requirements of the statute, must tend to connect the defendant with the commission of the offense (Code of 1876, § 4895); and any legal testimony having this tendency must be admitted. — Lockett v. The State, 63 Ala. 5; Smith v. The State, 59 Ala. 104; Lumpkin v. The State, 68 Ala. 56; Marler v. State, Ib. 580. So, proximity and opportunity, when, as in this case, the testimony tends to show the crime was committed at a very unseasonable hour,- is a circumstance to be weighed by the jury, in determining the guilt or innocence of the accused. The tendency of each of these species of evidence, as far as they had any tendency at all, was to connect the defendant with the commission of the offense. It was for the jury, and not for the trial court, nor for us, to judge .of their sufficiency. The demands , of the statute are met, when the corroborative testimony tends to connect the accused with the commission of the offense. Its sufficiency is not a question of law.

Tested by these principles, the Circuit Court did not err in receiving testimony of defendant’s flight, nor in the general charge given.

Of the charges asked by defendant and refused, charge No. 3 is involved, and would tend to mislead. Nor is it correct in point of law. To require corroboration as an indispensable condition of a conviction on the positive testimony of a witness, the statute demands that that witness shall have been an accomplice. It is not enough that the jury shall be left in doubt on the subject. They must be reasonably convinced he was such accomplice, before the statutory requirement comes into play. True, doubt whether or not he was an accomplice may be considered- by the jury, in weighing the testimony of the witness, but it does not bring the case within the statutory rule, requiring corroboration as an absolute condition of conviction.

Charge No. 4 was rightly refused, on the principles above declared. Charge No. 9 is faulty in two respects. It assumes that the testimony of the witness Flowers, the alleged accomplice, was unreasonable and improbable.” That was a question for the jury, and should have been stated hypothetically ; and, even,if the testimony of a witness is unreasonable and improbable, it does not follow, as matter of law, that it shall be disbelieved. These are mere matters to be weighed by the jury, in making up their verdict.

The clerk of the Circuit Court will be allowed no costs for the return to the certiorari.

Affirmed.