The opinion
CATES, Judge
(dissenting).
Admittedly, the State trotted out a scantily clad corpus delicti.
However, I am constrained to dissent. I have read all of the testimony of the witness, Walter Styron. Whether or not Styron (who at the time of the crime was but fifteen years old) was an accomplice within the scope of Code 1940, T. 15, § 307, was, in my opinion, not a pure question of law solely for the trial judge.
This statute is not a spigot of mercy to be turned on and off only by the jury (State v. Carr, 28 Or. 389 , 42 P. 215 ). Here there is no direct proof that Styron was by common law standards a principal, or an accessory either before or to the fact.
That he got some of the money which came from the vending machine, would, at most, make him an accessory after the fact or a receiver. See Cooper v. State, 43 Ala. App. 385 , 191 So. 2d 224 , and Leonard v. State, 43 Ala.App. 454 , 192 So.2d 461 ; also McElroy, Evidence (2d Ed., § 300.01(6)).
Without a request by defense counsel in writing for a jury direction (e. g., Read v. State, 195 Ala. 671 , 71 So. 96 ), I consider that on the face of the instant record the question of corroboration has not been preserved for appellate review.
The statute on corroboration is not of constitutional origin. Hence, it should be carefully applied so as not to bring about a miscarriage of justice. The State as much as the defendant is entitled to the protection of law. Rule 45 should require an affirmance of the judgment below.