Appeal from the Circuit Court, Jefferson County, J. Richmond Pearson, J. [696 So2d Page 296]
The opinion of the court was delivered by: Taylor, Presiding Judge.
The appellant, Tiko Maurice Webb, was convicted of manslaughter, a violation of § 13A-6-3, Code of Alabama 1975. The appellant was tried as an aider and abettor to the principal, Anthony Liggons, for the shooting death of Howard Hall, Jr. He was sentenced to 16 years in the state penitentiary.
The state's evidence tended to show that at approximately 7:00 p.m. on October 23, 1992, the Birmingham Police Department responded to a call. Officer Jessie Straiton of the Birmingham Police Department's evidence collection unit, testified that upon arriving, she observed a small pickup truck angled into the edge of an apartment building and that a body, subsequently identified as Howard Hall, Jr., was lying on the ground a few feet from the truck. Dr. Bruce Alexander of the Jefferson County Coroner and Medical Examiner's Office testified that he conducted an autopsy and determined that the cause of death was a gunshot wound to the chest.
The appellant contends that the trial court erred in denying his motion to dismiss because, he says, the state's evidence was insufficient as a matter of law to support his conviction for manslaughter. After a review of the record we believe that sufficient evidence was indeed presented to submit the case to the jury for its determination.
The state's evidence showed that the victim was shot by Anthony Liggons. The issue presented here is whether the appellant was an accomplice to the shooting. Dorothy Collie testified that she witnessed the shooting and the events that led to the shooting. She testified that she knew both Liggons and the appellant and that both were together around the area in front of her house when a white truck driven by the victim circled the area. The truck circled several times, and on two occasions Liggons motioned for the driver to stop. The third time the truck stopped and the appellant approached the passenger side of the truck and Liggons approached the driver's side. Collie testified that Liggons and the victim argued, that the appellant opened and shut the passenger side door, and that Liggons shot the victim.
The appellant gave conflicting accounts to police of the facts surrounding the shooting. He told police that he and Liggons had heard shots at a distance and that they ran to a nearby house where they watched television. The appellant testified differently at trial. At trial he stated that Liggons arrived at the site of the shooting after he did. He admitted, at trial, that he had told several lies in his statement to police.
The evidence here presented a jury question as to whether the appellant was an accomplice. The issues presented by this case are similar to the issues addressed by this court in Payne v. State, 487 So.2d 256 (Ala.Cr.App. 1986), where we stated:
" 'The mere fact that a person witnesses a crime does not make him an accomplice.' Nelson v. State, 405 So.2d 392, 397 (Ala.Cr.App. 1980), reversed on other grounds, 405 So.2d 401 (Ala. 1981). 'The mere presence of a person at the time and place of a crime is not sufficient to justify his conviction for the commission of the crime.' Dolvin [696 So2d Page 297]
v. State, 391 So.2d 129, 133 (Ala.Cr.App. 1979), reversed, 391 So.2d 129, 133 (Ala.Cr.App. 1979), reversed, 391 So.2d 133 (Ala. 1980). However, 'if presence at the time and place a crime is committed, in conjunction with other facts and circumstances, tends to connect the accused with the commission of the crime, then the jury may find the accused guilty.' Dolvin, 391 So.2d at 137. '[P]resence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.' 22 C.J.S. Criminal Law § 88(2)(d) (1961). Gibson v. State, 49 Ala. App. 18, 20, 268 So.2d 49 (1972).
" 'A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense: * * * He aids or abets such other person to commit the offense.' Alabama Code 1975, § 13A-2-23(2). 'Any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, whether or not the one so contributing is present, brings the accused within the statute that makes any person concerned in the commission of a felony, directly or indirectly, a principal. No particular acts are necessary to make one an aider or abettor.' Scott v. State, 374 So.2d 316, 318-19 (Ala. 1979) (citations omitted). However, 'mere consent to a crime, when no aid is given and no encouragement rendered, does not amount to participation.' State v. Tally, 102 Ala. 25, 68, 15 So. 722, 738 (1894).
" '[T]o be an aider or abettor when no assistance is given or word uttered, the person so charged must have been present by preconcert, special or general, or at least to the knowledge of the principal, with the intent to aid him. This view is very clearly stated by Mr. Wharton. He says: "It is not necessary, therefore, to prove that the party actually aided in the commission of the offense. If he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law he was aiding and abetting." 1 Whart.Cr. Law, § 210. And the same idea is thus expressed by Mr. Stephens in his Summary of Criminal Law: "The aiding and abetting must involve some participation. Mere presence without participation will not suffice if no act whatever is done in concert, and no confidence intentionally imparted by such presence to the perpetrators." See Connaughty v. State, 1 Wis. 159. And Mr. Bishop says: "A principal in the second degree is one who is present lending his countenance and encouragement, or otherwise aiding, while another does the act." Bish.Cr. Law, 648. And Mr. Wharton further says: "Something must be shown in the conduct of the bystander which indicates [to the perpetrator, manifestly] a design to encourage, incite, or in some manner afford aid or consent to the particular act, though when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone will be regarded as an encouragement. * * * The confederacy must be real. * * * Mere consent to a crime, when no aid is given and no encouragement rendered, does not amount to participation." 1 Whart Cr. Law, 211a, 211c, 211d.' Tally, 102 Ala. at 68, 15 So. 722.
"Although mere presence at the time and place of a crime is not sufficient to justify a conviction for the commission of that crime, presence is a factor to be considered by the jury in determining the guilt of the accused because 'mere presence does establish a "material fact, which is the opportunity of defendant to commit the offense." ' German [v. State], 429 So.2d  at 1141 [(Ala.Cr.App. 1982)].
"To make one accused of a crime an accomplice, 'the State must adduce some legal evidence implying that he either recruited, helped or counseled in preparing the [crime] or took or undertook some part [696 So2d Page 298]
in its commission. Criminal agency in another's offense is not shown merely by an exhibition of passivity.' Pugh v. State, 42 Ala. App. 499, 502, 169 So.2d 27 (1964)."
487 So.2d at 261-62 (Emphasis added.) See also Fortier v. State, 515 So.2d 101 (Ala.Cr.App. 1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 776, 98 L.Ed.2d 862 (1988); Reeves v. State, 530 So.2d 894 (Ala.Cr.App. 1988).
This court further discussed "presence" as it relates to "aiding and abetting" in Gwin v. State, 456 So.2d 845, 851 (Ala.Cr.App. 1984), and stated:
" 'Aid and abet "comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary." ' Jones v. State, 174 Ala. 53, 57, 57 So. 31 (1911), quoted in Radke v. State, 292 Ala. 290, 292, 293 So.2d 314 (1974). If the jury is convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, the fact that the defendant is an aider and abettor is established. Jones, supra; Raiford v. State, 59 Ala. 106, 108 (1877). 'The culpable participation of the accomplice need not be proved by positive testimony, and indeed rarely is so proved. Fuller v. State, 43 Ala. App. 632, 198 So.2d 625. Rather, the jury must examine the conduct of the parties and the testimony as to the ...