BUSH v. STATE12/1/1995
i
may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti." Bridges v. State, 284 Ala. 412, 417, 225 So.2d 821, 826 (1969). See also Watters v. State; Thompson v. State, 358 So.2d 1069, 1071 (Ala. Cr. App. 1978).
"Evidence of facts and circumstances, attending the particular offense, and usually attending the commission of similar offenses — or of facts to the discovery of which the confession has led, and which would not probably have existed if the offense had not been committed — or of facts having a just tendency to lead the mind to the conclusion that the offense has been committed — would be admissible to corroborate the confession. The weight which would be accorded them, when connected with the confession, the jury must determine, under proper instructions from the court."
Matthews v. State, 55 Ala. 187, 194 (1876).
It is undisputed that Dominguez was murdered in the Majik Market, and the evidence clearly established the corpus delicti of murder. However, the issue presented here is whether this murder was committed during a robbery in the first degree or an attempted robbery, making the offense a capital offense. A defendant commits robbery in the first degree if "in the course of committing a theft he . . . ses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance," § 13A-8-43, and he " s armed with a deadly weapon or dangerous instrument" or "causes serious physical injury to another," § 13A-8-41.
Here, again, the evidence is undisputed that Dominguez's assailant used force and caused his death by means of a deadly weapon or dangerous instrument. However, in determining whether a robbery or an attempted robbery was committed, the important question presented is whether the assailant was, at the time he used force against Dominguez, "in the course of committing a theft." Section 13A-8-40(b), defines that phrase, as follows: "In the course of committing a theft embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission."
The capital crime of the intentional killing of the victim during a robbery or an attempted robbery is a single offense beginning with the act of robbing or attempting to rob and culminating with the intentional killing of the victim. The offense consists of two elements, robbing and intentionally killing. Davis v. State, 536 So.2d 110 (Ala. Cr. App. 1987), aff'd, 536 So.2d 118 (Ala. 1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1766, 104 L.Ed.2d 201 (1989); Magwood v. State, 494 So.2d 124 (Ala. Cr. App. 1985), aff'd, 494 So.2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986).
"As the Alabama Supreme Court held in Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962), 'the fact that the victim was dead at the time the property was taken would not militate [against a finding] of robbery if the intervening time between the murder and the taking formed a continuous chain of events.' Clements v. State, 370 So.2d 708, 713 (Ala. Cr. App. 1978), affirmed in pertinent part, 370 So.2d 723 (Ala. 1979); Clark v. State, 451 So.2d 368, 372 (Ala. Cr. App. 1984). To sustain any other position 'would be tantamount to granting to would-be robbers a license to kill their victims prior to robbing them in the hope of avoiding prosecution under the capital felony statute.' Thomas v. State, 460 So.2d 207, 212 (Ala. Cr. App. 1983), af
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