Boswell v. State

| Ala. Ct. App. | Jun 30, 1911

PELHAM, J.

The indictment in this case jointly charged defendant and Louis Fitten with grand larceny. A severance was granted, and the defendant tried separately. The evidence on the part of the state tended to show that the defendant, while with Louis Fitten, by means of subterfuge or trickery, procured from the prosecuting witness $75 to be put with a sum of money fictitiously claimed to have been found by him; the total amount to be subsequently divided among the parties. The defendant denied the transaction, and introduced proof setting up an alibi.

The question asked the prosecuting witness, Purnell, on redirect examination, “Did Louis (referring to Louis Fitten) hide behind his brother, and didn’t Mr. Mallory tell the man to let him get out so you could see him?” had a direct bearing on t-lie matters asked about on the cross-examination of the witness by defendant on the question of identification, and was permissible as being a re-examination of the witness on the matters brought out by defendant on cross-examination. It was also proper as having a tendency to show the existence of a conspiracy between Fitten and the defendant to take the money of Avitness and confuse him as to the identity of the guilty party. The acts, declarations, and conduct of a person concerned in the common purpose to commit a crime are admissible as evidence against the others.— McAnally v. State, 74 Ala. 9" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/mcanally-v-state-6511684?utm_source=webapp" opinion_id="6511684">74 Ala. 9; Johnson v. State, 87 Ala. 39" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/johnson-v-state-6513466?utm_source=webapp" opinion_id="6513466">87 Ala. 39, 6 South. 400; hunter v. State, 112 Ala. 77" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/hunter-v-state-6516825?utm_source=webapp" opinion_id="6516825">112 Ala. 77, 21 South. 65; Martin v. State, 136 Ala. 32" court="Ala." date_filed="1902-11-15" href="https://app.midpage.ai/document/martin-v-state-6519824?utm_source=webapp" opinion_id="6519824">136 Ala. 32, 34 South. 205.

Charge No. 1 requested by the defendant Avas properly refused. There was evidence which, if believed, was sufficient to authorize the jury to find the defendant guilty of the charge.

Charge No. 2 singled out the evidence of the witness Sam Jackson and gave undue prominence to it. It is bad also, in that it bases an acquittal on a belief of part of the evidence, and does not require the jury to consider all of the evidence in connection Avith that of the witness Jackson in arriving at a verdict. The prosecuting witness states the money was taken between 12 and 1 o’clock, and the witness Jackson says he last saw the defendant on the day in question at 12:30 o’clock.

There was no error in refusing charge No. 5. If the defendant, when he received the money, entertained the fraudulent purpose of appropriating it to his own use, he would be guilty of larceny.—Levy v. State, 79 Ala. 259" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/levy-v-state-6512361?utm_source=webapp" opinion_id="6512361">79 Ala. 259; Eggleston v. State, 129 Ala. 80" court="Ala." date_filed="1900-11-15" href="https://app.midpage.ai/document/eggleston-v-state-6518895?utm_source=webapp" opinion_id="6518895">129 Ala. 80, 30 South. 582, 87 Am. St. Rep. 17. Larceny and embezzlement belong to the same family of crimes; the distinguishing feature being that to constitute larceny there must have been a trespass or wrong to the possession, but where one gains possession of the property so as to constitute only a bare charge, or custody, or procures it by subterfuge, it does not divest the possession of the true owner; he is still in the constructive possession, and the offense of appropriating the property is larceny.-Holbrook v. State, 107 Ala. 154" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/holbrook-v-state-6516160?utm_source=webapp" opinion_id="6516160">107 Ala. 154, 18 South. 109, 54 Am. St. Rep. 65; Mitchell v. State, 56 So. 56" court="Ala. Ct. App." date_filed="1911-05-16" href="https://app.midpage.ai/document/mitchell-v-state-6520850?utm_source=webapp" opinion_id="6520850">56 South. 56.

The record in this case shows that the defendant was sentenced to an additional term of 122 days to pay the costs of the prosecution, amounting to $49.10, at the rate of 40 cents per day. Section 13 of the act approved November 30, 1907 (Acts 1907, Sp. Sess. p. 183), which provided the rate should be at 40 cents per day, has been held to be unconstitutional and void (Dowling v. City of Troy, Ala. App. MSS.), and the defendant should have been sentenced to pay the costs at the rate of 75 cents per day, as provided by section 7635 of the Code of 1907. The judgment is here corrected, requiring the defendant to serve an additional term in lieu of the payment of costs, calculated at the rate of 75 cents per day, being 65 days, in place of 122 days; and, as herein corrected, the judgment of conviction of the court below is affirmed, without costs.

Affirmed.