67 So. 792 | Ala. Ct. App. | 1915
Defendant was convicted of grand larceny, and on appeal bis counsel urge that tbe lower court committed error in tbe admission of evidence, in two particulars, and in refusing written charges 9 and 12.
Clearly, tbe court was, as is first insisted, in error in permitting tbe state’s witness Sims to testify that some one told bim (witness) over tbe pbone that: “There is I am sure be has stolen them and is trying to dispose of talking was a police officer, and that the defendant bad them. If I turn tbe negro up, will you pay us for it?”
Tbe court was probably led into tbe error of admitting this evidence upon tbe assumption that tbe person talking was a police officer, and that tbe defendant bad been arrested and was within tbe presence and hearing of tbe officer at tbe time tbe latter was so talking over tbe pbone and therein charging defendant with crime. There was some basis for such an inference at tbe time tbe message was let in, evidently misleading also' tbe defendant’s counsel, which we judge from tbe fact that one of tbe objections interposed to it by bim was “that it was a declaration made by a third party in tbe presence of defendant.”
Later, it developed that defendant was not present; and thereupon tbe court on motion of defendant’s counsel excluded and ruled out from tbe consideration of tbe jury this telephone message, and thereby cured tbe error of admitting it.
It appears that tbe defendant was a porter in tbe store from which tbe goods. were stolen, and that, among tbe articles taken, was a lady’s dress, which was found, on the day tbe defendant was arrested, concealed behind tbe store, and that, when found, tbe ticket bearing tbe price mark ($35), which bad formerly been on tbe dress, bad been removed from it; and one of the
The insistence here of defendant’s counsel, which is predicated upon his objection in the lower court raising that point, is that the ticket itself was the best evidence of its contents, and that secondary evidence of such contents was not admissible until loss of the ticket had been shown. This is undoubtedly the rule with respect to documents; but counsel overlook the fact that there are certain writings and inscriptions which cannot be properly classed as documents, and to which the rule is not applicable, but which the law regards simply as matters of description and identity and as susceptible, primarily, of parol proof. Among writings that have been held to be of this class are a direction on a parcel, words written on the tag of a valise, labels attached to jugs or decanters, and indicating their contents, etc.; and we a.re clear'in the opinion, and so hold, that the ticket here in question properly falls within such class, and consequently that the court did not err in admitting parol evidence to the effect that the ticket found on the prisoner looked like the one that was missing from the dress and that each bore the price mark $35.-17 Cyc. 483, and cases there cited; Hester v. State, 103 Ala. 83, 15 South. 857; 1 Mayf. Dig. 322, § 8, and page 336, § 27; Mitchell v. State, 94 Ala. 68, 10 South. 518; Spivey v. State, 26 Ala. 90; Watson v. State, 63 Ala. 19; Duffie v. Phillips, 31 Ala. 571; Johnson v. Cunningham, 1 Ala. 249.
As there was evidence, which, if believed by the jury, was sufficient in its inferences to overcome prima facie the presumption of innocence, the court- did not err in
We have discussed only the errors urged, but have examined the entire record. As we find no error, the judgment appealed from is affirmed.
Affirmed.