The judgment is reversed on the single ground that the testimony of Joe Percy Bragg is not corroborated in the way requisite to conviction. Code § 5635.
Upon consideration I cannot agree.
As I read the testimony — for the first time on this application for rehearing — there appear at least two circumstances, or bits of testimony, that seem to me to *Page 428 meet all the requirements of the statute as to the corroboration requisite for a submission of the case to the jury.
I shall set out and discuss but one, — because, forsooth, if I am in error about this one, I would be in error about the other — the one discussed being the strongest, as I see it, of the two; and if I am correct, as I believe I am, about the one discussed, my associates grievously err in reversing the judgment of conviction on the ground stated in the original opinion.
The crime was committed some time after midnight, on Saturday morning. On the following Wednesday, appellant turned up at El Dorado, Ark., some 480 miles from Birmingham, where he called upon Billie Teachworth at 2 a. m., remaining for only a few minutes.
Billie Teachworth testified that at the time appellant called upon her as aforesaid, she had already heard of his wife's having been shot. She says he told her at that time and place, and under those circumstances, that "he didn't want me (her) to come back here (Birmingham), it would just cause embarrassment"; that police officers might come out there (El Dorado), and that if she "didn't want to come back, not to come back" (meaning to Birmingham). She said he told her, further, with reference to these Birmingham police officers, "to tellthem nothing." (Italics mine.) This testimony of Billie Teachworth is completely ignored, in the majority opinion.
Counsel for appellant (not so indifferent) says, in disposing of the testimony of Billie Teachworth, which we have quoted and narrated above, "This appellant doubtless realized that when an assault had been made upon his wife, in scurrying around for the perpetrator of the assault, his relations with the Teachworth woman would probably be uncovered. He merely attempted to save himself and his family from the embarrassmentthat would ensue if the woman came back." (Italics mine.) And said counsel says: "He had a perfect right to do that."
Well, true it is that "embarrassment ensued to appellant" by the "coming back" of this Teachworth woman. But I am of the opinion that this unusual activity (for surely the hurried drive some 480 miles into Arkansas for the purpose of a very brief interview, at 2 o'clock in the morning, with this woman, can be rightfully denominated "unusual" activity) on the part of appellant in undertaking to reach Miss Teachworth, and his anxiety to have her silenced as a witness (as to the circumstances of the shooting of his wife, as the jury could fairly infer), "was of itself some evidence tending to prove a consciousness of guilt, and tended to connect defendant [appellant] with the commission of the crime." (Italics mine.) Crumbley v. State, 26 Ala. App. 24, 152 So. 55, 56; certiorari denied by our Supreme Court, 228 Ala. 45, 152 So. 57. "The probative force of this evidence was for the jury." Id.
Granted that the story told by Joe Percy Bragg was "weird, unnatural and is not easily understandable," yet so was the crime; and so was the prompt nocturnal visit paid by appellant, for the purpose stated, to his possibly motivating paramour in a far distant city.
The issues, in my opinion, were properly left to the jury.
I therefore respectfully dissent from the order overruling the state's application for rehearing.