Driver v. State
- Reporters:
- , ,
- Before:
- Merritt
32(1)—Indictment can lay ownership jointly in employer and laborers having lien.
Assuming that the relationship between the owner of a plantation and persons raising cotton thereon was one of hire under
2. Larceny 60—Testimony of witness that he and two others were joint owners of property held to support allegation of ownership.
On a trial for larceny, the testimony of a witness that he and two others were joint owners of the property was sufficient in itself to warrant a finding to that effect as alleged in the indictment, where there was nothing to indicate that this statement was predicated on the other facts shown as to ownership, and there was no attempt to question such ownership or how it came about.
3. Criminal law 822(13)—Charge as to possession of stolen goods not erroneous when taken as a whole.
That portions of court‘s oral charge relative to the possession of stolen property, when taken separately, might be susceptible to criticism, is immaterial when it correctly states the law and is free from error when taken as a whole.
4. Criminal law 563, 741(1)—Sufficiency of proof of corpus delicti is for jury if there is any evidence thereof, direct or circumstantial.
The sufficiency of proof to establish the corpus delicti in a criminal case is a question for the jury, and not for the court, if there is any proof tending to show it, and this proof may be of a circumstantial nature and need not be direct proof.
Appeal from Circuit Court, Chilton County; B. K. McMorris, Judge.
Luther Driver and Enoch Mims were convicted of grand larceny, and they appealed. Affirmed on original opinion and on application for rehearing, but reversed and remanded under mandate of the Supreme Court (206 Ala. 195, 89 South. 504).
Grady Reynolds, of Clanton, and Hill, Hill, Whiting & Thomas, of Montgomery, for appellants.
The defendant was not guilty of grand larceny under the facts of this case, and the court was in error in its oral charge.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
There was no variance.
MERRITT, J. [1] The appellants were convicted of grand larceny, the theft of seed cotton. In the trial of the case the defendants offered no testimony, and it is earnestly insisted here, as also appears to have been done in the trial court, that there was a variance between the allegation of the ownership of the property as alleged in the indictment, and as disclosed by the proof. The ownership was laid in E. H. Mims, Becky Driver, and Will Connell. The testimony of the relationship of these parties as regards these farming operations for the year 1919 is very meagre, as disclosed by the record. This much, however, we think is shown: That Becky Driver and Will Connell raised the cotton alleged to have been stolen on the plantation of Mims; that they were working on halves; that Mims furnished the “team and everything,” and Becky Driver and Will Connell furnished the labor. Appellant insists that under this state of facts there arose the relation of employer and employee, hirer and hireling, or master and servant under
[2] But, aside from this phase of the evidence, there is the testimony undisputed of Will Connell that he, Becky Driver, and Mims were the joint owners of the property. There is nothing to indicate that this statement as to ownership was predicated on the facts above—no attempt to question this ownership or how it came about—and, the defendants offering no testimony, this was sufficient within itself in warranting the jury to the conclusion that the ownership of the property was proven as alleged.
[3] Portions of the court‘s oral charge relative to the possession of stolen property, when taken separately, may be susceptible to criticism, but, when taken as a whole, correctly state the law, and are free from error. Orr v. State, 107 Ala. 35, 18 South. 142; Thomas v. State, 109 Ala. 25, 19 South. 403; Sherrer v. State, 16 Ala. App. 190, 76 South. 474.
[4] The sufficiency of the proof to establish the corpus delicti in a criminal case is a question for the jury, and not for the court, if there is any proof tending to show it, and this proof may be of a circumstantial nature. It is not required to be shown by direct proof. Hall v. State, 134 Ala. 116, 32 South. 750; Vaughn v. State, 130 Ala. 29, 30 South. 669. In the instant case there was ample evidence upon which to submit this question to the jury.
Many objections were made to the introduction of testimony, and motions made to exclude the answers, but no grounds, either in support of the objections or motions to exclude the answers, appear in the record. We have considered, however, the many questions raised on the introduction of the testimony, and are of the opinion that the rulings of the trial court are free from reversible error.
There is no reversible error in the record, and the judgment of conviction is affirmed.
Affirmed.
On Rehearing.
The evidence in this case shows that the seed cotton alleged to have been stolen was taken from the porch of the house of Will Connell. The appellant contends in his application for rehearing that the porch is not a part of the dwelling house, and that the taking therefrom could not constitute larceny under
“Any person who commits larceny in any dwelling house, storehouse, smokehouse, etc., on conviction must be imprisoned in the penitentiary not less than three or more than six years.”
Construing this statute in the case of Henry v. State, 39 Ala. 680, the Supreme Court held that the taking of clothes from the banister or railing of the porch attached to the dwelling house did not come under the ban of the statute, and that such taking was not a taking in the dwelling house. No change was made in this statute until the Code of 1886, when the word “from” was incorporated therein, making the crime, when complete in other respects, that the taking should be “from or in any dwelling house.” This change was evidently made to meet the holding in Henry‘s Case, supra.
Our understanding however, of the holding in the Henry Case, is that the court merely held that, while the porch may, in some sense, be a part of the house, it was not, under
Appellant could with as much reason contend that the felonious taking from the roof of the house would not fall under
Application for rehearing overruled.
July 19, 1921. Reversed and remanded under authority of Luther Driver and Enoch Mims v. State, 206 Ala. 195, 89 South. 504.