Boyd v. State
43 So. 204
Ala.
1907
Check Treatment
MoCLELLAN, J.

The appellant was convicted of receiving, etc., stolen property. The essential elements necessary to be found by the jury in ordr to warrant a *105conviction of this offense are that the property involved •Avas stolen, and that defendant, knoAving it to have been stolen and not having the intent to restore it to the OAvner, bought, received, and concealed, or aided another in concealing, the subject of the larceny. The burden of proof is on the state, on the issue of larceny vel non, to establish beyond a. reasonable doubt that the propei ty immlved was taken or appropriated animo furandi, which includes a taking or appropriation Avithout the consent of the owner. Where the act is clandestinely done, or there is an effort to conceal the possession of the property, or to prevent the owner from disccrnming it, there is evidence of such felonious intent. It need hardly be said that Avant of consent may be shown inferentiallv, and that direct evidence to that effect is not indispensable. The recent possession of stolen property casts on the defendant the onus of explaining his possession, and, if he fails to make a reasonable explanation, a presumption of guilt arises Avhich will support a conviction. The same rule is applicable where the offense alleged is as here.—Martin's Case, 104 Ala. 71, 16 South. 82.

A contested question in this case is whether the foliáceo Avas taken from the car without the consent of the Southern Railway Company, and the determination of that issue of fact turned upon the authority of NeAV and Miller, agents of the company, to consent, for their master, to the taking. The trial court submitted the whole issue to the jury, and in that connection properly admitted all testimony tending to show the authoritv committed by the principal to the agents NeAV and Miller. ' .

The judgment of the Jefferson county criminal court is not Aroid.—Drigger’s Case, 123 Ala. 46, 26 South. 512; Wilkinson’s Case, 106 Ala. 28, 17 South, 458. This judgment, Avhich reveals a conviction of Hamp Miller of larceny, Avas objected to by the state on the ground, among others, untenable, that it was not shown that the witness 1-Iamp Miller was the same person as' the Hamp Miller condemned in the judgment. The rule, as regards Avitnesses, seems to be that identity of names affords ground for the prima facie evidential presumption of *106identity of persons.—1 Greenleaf on Ev. § 13a; McGuire’s Case, 87 Mo. 642; Bayha v. Mumford, 58 Kan. 445, 49 Pac. 601, and cases therein cited. This presumption may he rebutted by proof inconsistent therewith, but, whether rebutted or not, must be a question for the determination of the jury from all the testimony pertinent to the question of identity.

Iiris unnecessary to treat seriatim the various charges refused to defendant. Some of them pretermit elements of the offense declared in the statute; others assume authority in the agents to consent for the company in question; and still others omit, in hypothesis, the possible presumption arising from the possession of stolen property, if so found. The charges affected with these infirmities were well refused.

This disposes of all of them except charges A and Q. The former should have been given, and its refusal is error.—Mitchell’s Case, 129 Ala. 23, 30 South. 348. The latter was rendered vicious by the use of the word “affirmatively,” and requires too high, a degree of proof.

There is no other prejudicial error in the record; and for those indicated the judgment of the city court must be reversed, and the cause remanded.

Reversed and remanded.

Tyson, O. J., and Haralson, Simpson, and Anderson, JJ., concur.