| Ala. | Jan 15, 1871
The appellant was convicted on
An indictment for larceny should describe the property with such certainty as will enable the jury to decide whether what is proved to be stolen is the very same with that upon which the indictment is founded, and show judicially to the court that it could have been the subject-matter of the offense charged, and enable the defendant to plead his acquittal or conviction to a subsequent indictment relating to the same property. — Russ, on Crimes, p. 106.
Section 4116 of the Revised Code allows any fact which is unknown to the grand jury, and which is not a material ingredient of the offense, to be so charged in the indictment. Section 4112 of the Revised Code requires the facta constituting the offense to be stated in ordinary and concise language, without prolixity or repetition in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.
The number of pieces of coin, the denomination, or the kind, whether gold, silver, copper, or other material, is not a necessary ingredient of a larceny of coin of the United States. Any coin of the United States is the subject of larceny, and the prisoner can not object if he has his future defense as to any coin charged in this indictment. The description is sufficient. — Commonwealth v. Sawtelle, 11 Cush. 142.
The first charge asked by the defendant was too sweeping. A presumption may be applied when the circumstances are such as to render the opposite hypothesis improbable. If the latter be rendered exceedingly remote and improbable, and morally, though not absolutely, impossible, the former is established as morally true. — 3 Starkie’s Ev. 506, 510, 483 ; Phil. Ev. vol. 1, p. 614, note. In criminal prosecutions, circumstantial evidence should be such as to exclude a rational probability of innocence to justify conviction.
The third charge, we think, ought to have been given. The larceny itself must be proved by the best evidence the nature of the case admits. Where non-consent is a principal ingredient in the offense, direct proof alone from the person whose non-consent is necessary can satisfy the rule. Other and inferior proof can not be resorted to, till it be impossible to procure this best evidence. When the person who last had innocent possession of the property can be called as a witness, some sufficient reason why it is not done ought to be shown. — Phil. Bv. vol. 1, p. 635; Russ, on Crimes, vol. 2, p. 121. In such cases, mere presumptive, prima facie, or circumstantial evidence, is secondary in degree, and can not be used till all the sources of direct evidence are exhausted.— Williams v. The East India Co., 3 East, 192, 201.
Mr. Moore, the owner of the money, testified that his wife had immediate charge of the money, which was kept by her in a box placed in a wardrobe, the key to each of which she also kept; that about the beginning of the year 1870 he saw the money in the box for the last time, and about the first of June afterwards his wife told him it had been stolen, when he looked into the box and found only a few pieces of silver left; that he could not swear, of his own knowledge, the money was stolen. This was all the evidence to prove the larceny, the other testimony was circumstantial merely. In this state of proof, if the fact of larceny had been clearly proved, the admitted possession of the stolen property would scarcely be sufficient to impose on the defendant the necessity of accounting for his possession. But when it is not proved to have been stolen, and may have been taken any time within six months, and is not identified in the hands of the defendant, except by circumstances, a reasonable doubt of his guilt may well be admitted.
We do not wish to be understood to hold that larceny can not be proved without the testimony of the person who last had lawful possession of the property, but that a con
The judgment is reversed, and the cause remanded.