
    Lindsey v. The State.
    
      Burglary.
    
    (Decided Feb. 9, 1911.
    54 South. 516.)
    1. Burglary; Evidence. — The proximity of the defendant to the place of the crime, at an unseasonable hour, with opportunity to commit the crime is competent as a circumstance to be weighed by the jury.
    2. Evidence; Accomplices; Corroboration. — The evidence in this case stated and examined and held not sufficient to sustain a conviction as not sufficiently corroborating the testimony of an accomplice.
    Appeal from Barbour Circuit Court.
    Heard before Hon. M. Sollie.
    Ike Lindsey was convicted of burglary and he appeals.
    Reversed and remanded.
    
      T. M. Patterson, for appellant.
    Tbe corroborative facts and circumstances introduced were not sufficient to authorize a conviction upon the testimony of the accomplice in this case. — 12 Oyc. 456, 7, 9, and 55 ; Marler v. The State, 67 Ala. 55; Smith v. The State, 59 Ala. 104.
    Alexandbii M. Garber, Attorney General, and Peach & Th’omas, for the State.
    The sufficiency of the evidence was not a question of law, hut was for the jury, and the corroborative evidence appearing in this record is sufficient in the light of the testimony of the accomplice, to authorize a submission of the defendant’s guilt to the jury. — Sec. 7897, Code 1907; Smith v. The State, 59 Ala. 104; Tjumpkin v. The State, 68 Ala. 57; Ross v. The State, 74 Ala. 536.
   SOMERVILLE, J.

The defendant was convicted of the burglary of a storehouse, and the testimony of the state’s witness, Peach McLeod, prima facie showed his complicity in the crime. McLeod, however, was an accomplice, and himself participated in the burglary. It is insisted for the defendant that there was no testimony introduced, other than that of his accomplice, which in any way tended.to connect the defendant with the commission of the crime. On this theory he requested •in writing the general affirmative charge for his acquittal, if the jury believed the evidence.

It appears that the burglarized storehouse .was at a railroad station, and the burglary occurred on a Saturday night at an hour unknown; that the entry was effected by breaking open a window; and that an ax was found under the store steps, which was identified as one which was kept and used at a woqdpile near some section houses in the vicinity of the station. The evidence relied upon to connect the defendant with the burglary in question seems to consist of two facts solely, viz: That be was at tbe station on this Saturday nigbt at about 9:30 o’clock, along with, several other negroes, and that one Jim Beasley, wbo then got off the train, asked him if be was going off on tbe train, to which defendant replied, “No,' I am not going off. I have got too good' a thing here,” be then standing near tbe woodpile where tbe said ax usually lay. It has been held by tbis court that the defendant’s proximity to the scene of the crime, and opportunity to commit it, it having occurred at a very unseasonable hour, is a circumstance to be weighed by the jury in determining bis guilt or innocence.—Ross v. State, 74 Ala. 532. But it certainly cannot be plausibly argued that tbe defendant’s presence at a public place, such as a railway station, in company with others at train time, even though tbe scene of the crime be near at band, itself tends in tbe slightest degree to connect tbe defendant with tbe commission of tbe crime, wbicb occurred it may be, and probably was, several hours later. Can tbe remark of tbe defendant to Jim Beasley, as quoted above, by any legitimate inference be imputed to an intention to break and enter a storehouse? It may be conceded that if tbe defendant were shown to be living in the community without occupation, and without any visible means of support, his remark might be attributable to his enjoyment of an unlawful means of livelihood. But with absolutely nothing to give it point or meaning it cannot be said to have any tendency to connect the defendant with tbis or with any crime.—McAdory v. State, 62 Ala. 154, 161.

We are aware that the statute (Cr. Code 1907, § 7897) has been liberally construed with respect to tbe extent and' character of tbe corroboration it requires.— Malachi v. State, 89 Ala. 134, 8 South. 104. But, even so, we are clear in the view that to allow a conviction on the testimony submitted in this case would pave the way for its complete destruction and consignment to the legislative trash pile. The trial court erred in refusing the affirmative charge as requested by the. defendant, and the judgment of conviction must he reversed.

Reversed and remanded.

Dowdell, G. J., and Anderson and Sayre, JJ., concur.  