Butler v. State, 91 Ala. 87

Butler v. State

91 Ala. 87 | Ala. | 1890

CLOPTON, J.

Counts for embezzlement and larceny having been joined in the indictment, defendant moved the court to compel the State to elect, whether it would proceed to prosecute on the counts for embezzlement or larceny. There is nothing in the indictment indicating that the felonies charged in the different counts constitute an attempt to convict the accused of two or more offenses growing out of separate transactions. Due precaution suggests the propriety of charging a single offense in different ways in different counts, so as to meet every probable aspect of the case, that may be presented by the evidence. When the distinct felonies are so charged, in good faith, for such purpose, the accused has no legal fight to compel the State to elect for which it will proceed to prosecute. The court will not exercise its power to compel an election, unless it appears, either from the indictment or the evidence, that an attempt is made to convict the accused of two or more offenses growing out of separate and distinct transactions.—Mayo v. State, 30 Ala. 32; Wooster v. State, 55 Ala. 217.

The claim of defendant is, that he sold the horse, for the embezzlement or larceny of which he is indicted, by authority of the owner. After the horse was sold, he offered to pay the owner forty-five dollars, in weekly installments of two dollars, and handed him an instrument, written by himself, purporting to be a bill of sale to the horse, and that it was to become his property upon payment of the purchase-money, to be signed by the owner, but which was never executed by him. This may be regarded as in the nature of an admission that the owner had not parted with his title, and as tending to contradict the theory of defendant, that he was authorized to sell the horse. There is no error in admitting the instrument in evidence.

Tt was not competent to prove the general character of defendant for profanity.—Hussey v. State, 87 Ala. 121.

*91In some of the counts of the indictment, the ownership of the horse is laid in Lish Taylor, and in others, in Hester Taylor, his wife. Defendant asked the court to charge the jury,, that if they have a reasonable doubt as to whether the horse belonged to Lish Taylor or Hester Taylor, they must acquit defendant. Certainly, the rule requires that the guilt of the-defendant shall be established beyond a reasonable doubt, but does not require that each fact which may aid the jury in reaching the conclusion of guilt shall be proved beyond a reasonable doubt. It is sufficient, if, on the whole evidence, defendant’s guilt is proved to a moral certainty. The object of laying the ownership in different persons in the several counts, is, to vary the allegation so as to meet every probable phase of the evidence. It is true, the State must prove, beyond a reasonable doubt, that the property charged to be stolen is. the property of some person other than defendant, and the ownership must be proved as averred.—Black v. State, 83 Ala. 81. But, when the ownership is laid in different persons, in different counts, and the evidence shows, to a moral certainty, that it is the property of one or the other, the jury may entertain doubt as to which one it.'belongs, and yet entertain no reasonable doubt as to the guilt of defendant. The jury can not be compelled to elect under which count they would find a verdict of guilty, and yet such would have been the effect of the charge.—Jackson v. State, 74 Ala. 26.

The charge asked by defendant, to the effect that the evidence shows that defendant was not a bailee in the meaning of the statute defining embezzlement, was a charge upon the-effect of the evidence, and properly refused. The evidence on the part of the State tends to show that the owner did not part with the title to the property, had the right to resume possession at any time, and that defendant held possession exclusively for his benefit.—Watson v. State, 70 Ala. 13.

There is no error in refusing to give either of the other charges asked by the defendant. They are either abstract, or misleading, or ambiguous, or give undue prominence to a single fact, or assert the proposition that defendant had the right to purge his act of criminality by merely offering to pay for the horse.

Affirmed.