43 So. 204 | Ala. | 1907
The appellant was convicted of receiving, etc., stolen property. The essential elements necessary to be found by the jury in ordr to warrant a
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
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.