Brown v. State

Nov 15, 1898

Reporters:
Before:: Haralson

HARALSON, J.

1. There is nothing in the objecthat it did not appear a copy of the indictment had been served on the defendant as required by statute. It does appear, that defendant admitted in open court at the trial that at the preceding July term, 1898, when the case was set for trial but afterwards continued, he had been duly served with a copy of the indictment. This was sufficient.

2. Robbery is an offense against the person as well as well as against the property of the party robbed, — against the person by violence, and against the property by manucaption with felonious intent of taking the property. James v. The State, 53 Ala. 381; Thomas v. The State, 91 Ala. 34. There was no error, therefore, in allowing the prosecutor, Hicks, to show the nature and extent of the violence to his person, employed by the robber.

3. It is always permissible for a defendant accused of a specific crime, to show that another, and not he was the guilty party ; but it is not competent for the accused to show, merely, that another was suspected of the commission of the crime. The several offers of defendant to prove such a fact were properly disallowed.—Levison v. The State, 54 Ala. 520, 527; Banks v. The State, 72 Ala. 522; West v. The State, 76 Ala. 98.

*3494. The confessions of defendant .admitted, against the objections of the defendant, were not allowed to go to the jury, until the witnesses testifying to them had shown that they were voluntary, — made without inducement or threats on their part to procure them, — and were, therefore, properly admitted.

5. The indictment was in due form and unchallenged by demurrer. It did not charge that defendant took two dollars in United States Treasury notes, but as to the note mentioned, it charged that he “feloniously took, one two dollar United States Treasury note.” The description designates the bill circulating as money by authority of the General Government, and exvi termini the kind or species of money, — national paper currency. It identifies it as one of the things stolen, and shows it to be a subject of larceny. The kind, denomination and value are sufficiently averred. Such wTas the decision of this court in Carden v. The State, 89 Ala. 130, as to a similar averment, in which case the court said: “The description in the indictment being sufficient, whether a more particular description was to the grand jury unknown, becomes an immaterial inquiry. Such an averment in an indictment, sufficiently describing the thing stolen, must be regarded as sur plus age.”

The averment of the taking of the treasury note, is followed by another averment in a separate clause, the two connected by the conjunction “and,” as follows, “and thirteen dollars in the silver coin of the United States, a further description of which is to‘the grand jury unknown;” the whole averment as to each species of property being, that defendant “feloniously took, one two dollar United States Treasury note and thirteen dollars in the silver coin of the United States, a further description,” etc. This latter averment, as to the silver coin, in the first place, is uncertain as to the denominations of the coin stolen, whether they were in whole or in part in one dollar, half dollar, quarter, ten or five cent pieces. If they had been in either or in mixed silver coins, they would have answered the description. This description was, therefore, without more, not sufficient, and it becomes necessary, as to these, to add the averment, found in the indictment, as to their being unknown. That this averment, which we have quoted and *350italicized above, must be construed as referring to the silver, and not to the treasury note, arises from more than one consideration. The note, as we have seen, was sufficiently described, without these words, and there was no necessity or propriety in employing them in aid of an indefinite or insufficient description of it. The words “a description,” indicates that reference was made to one of the two preceding clauses in the sentence in which they occur, and to one species of property described, and not to both. If intended to apply to both clauses and to each subject of the larceny, the words “further descriptions,” would have been more correctly employed. The averment of the taking of the silver coins being of a separate species of property taken from that of the treasury note, and being an insufficient description of them, the compound relative pronoun, “which,” in the phrase, “a further description of which,” must be held to refer to the latter insufficiently described species of property, and not to the former, which was sufficiently described. If the averment had been, as to the treasury note, that a further description of it than that given was unknown to the grand jury, and it appeared as it did, that the grand jury had the bill before them, when they found the indictment, then the defendant could not have been convicted under such an indictment, on the ground that it would have been an untrue averment.—James v. The State, 115 Ala. 83; Leonard v. The State, 115 Ala. 80.

6. The evidence showed that the identical two dollar treasury note stolen from the party robbed, was before the grand jury, but none of-the silver coins were, so far as is made to appear. Indeed, it reasonably appears they were not. It further shows, without conflict, that the silver taken was in the denominations of one dollar pieces.

There was no error in allowing the two dollar bill, identified as the one taken, to go to the jury, on the ground urged against its admission, that there was a variance in the bill from the property described in the indictment.

7. There is nothing in the contention, if the pocketbook stolen contained, besides the money mentioned in *351the indictment, receipts and other papers of nominal value to the owner, which papers were also stolen, that the defendant could not be convicted for having robbed the owner merely of his money. It was not incumbent on the State to aver and describe everything the pocketbook contained when stolen, but it might, as it did do, proceed for the taking of any part of its contents which were of value. The contention is the same as if a thief steals two or more horses, he can not be indicted and convicted for stealing one of them.

The charges asked and refused will, without special comment on each, appear to have been properly refused.

We discover no error in the record, and the judgment and sentence of the court below are affirmed.

Affirmed.