Ex parte STATE ex rel. ATTORNEY GENERAL. GORE v. STATE.
6 Div. 980
Supreme Court of Alabama
Dec. 16, 1927
217 Ala. 68; 114 So. 794
Charles F. Douglas, of Anniston, for appellee.
Brief did not reach the Reporter.
SOMERVILLE, J. [1] If the defendant Tolleson had reasonable grounds for believing, and did believe thаt the plaintiff Jackson stole the rim and tire in question from the owner, or received it from a third person, knowing it had been stolen, and with no intention to return it to the owner, there existed probablе cause for arresting Jackson, and the arrest was not unlawful, though made without a warrant; the theft in question being a felony.
“It is the settled law of this state that the recent рossession of stolen goods imposes on the possessor the onus of explaining the possession; and, if he fails to make a reasonable explanation, raises a presumption of guilt, which will support a verdict of conviction.” Martin v. State, 104 Ala. 71, 78, 16 So. 82, 85; Cooper v. State, 87 Ala. 135, 6 So. 303; Malachi v. State, 89 Ala. 134, 8 So. 104; Orr v. State, 107 Ala. 35, 39, 18 So. 142; Boyd v. State, 150 Ala. 101, 105, 43 So. 204.
While, as held by our decisions, the unexplained possession of recently stolen property—there being a failure to make a reasonable explanation after being properly called upon to do so—will authorize a presumption that the possessor either stole it himself, or received it from the thiеf, with knowledge that it had been stolen; yet the issue of guilt beyond a reasonable doubt must be submitted to the jury as a question of fact. Orr v. State, supra.
[2] But the presumption of guilt under those circumstances is, as a mattеr of law, a sufficient basis for an arresting officer‘s conclusion of guilt, and hence will serve as a justification for making the arrest. It in fact supplies the element of probable cause, and renders the arrest both reasonable and lawful. Sperier v. Ott, 6 Orleans App. 327; Wilson v. King, 39 N. Y. Super. 384.
Refused charges 6, 8, 9, and 17, are all grounded on this proposition, and each asserts and applies a correct principle of law. The error of their refusal is not cured by any other instruction given to the jury fairly covering the principle and its application. The nearest approach is in charge numbered 3, given at defendants’ request, the equivalence of which is, however, destroyed by the double condition there predicated that plaintiff did not and could not give a satisfactory explanation of his possession. The officer‘s conclusion of guilt would rest on the actual failure, and not the abstract inability, of the accused person to give a reasonable exрlanation.
[3] The assignments of error present for review some fifty or sixty rulings on the evidence. Most of these are without merit, and none of them, as we view the case, had any influence upоn the verdict. In general, all that was said by the arresting officer at the time of making the arrest, together with the replies of the accused, so far as such conversation was pertinent tо the arrest and its incidents, was admissible in evidence as res gestae: Rich v. McInerny, 103 Ala. 345, 356, 15 So. 663, 49 Am. St. Rep. 32.
[4] If, as plaintiff testified, his house was searched after his arrest upon his own insistence, the fact of the search was irrelevant, so far as damages were concerned; nor was it competent evidence for plaintiff, as tending to show a consciousness of innocence on his part. Evidence of such a search should have been excluded.
Other questions of evidence are not of sufficient importance to justify discussion.
Let the judgment be reversed and the cause remanded for another trial.
Reversed and remanded.
All the Justices concur.
1. Indictment and information 140(2)—Refusal to allow stenographer to refer to notes in testifying regarding what witnesses testified before grand jury held not reversible error.
On motion to quash indictment, court‘s refusal to allow stenographer, who was present and noted evidence in grand jury room, to refer to his notes in testifying as to what witnesses testified before grand jury held not reversible error, since when it appears witnesses were examined by grand jury or jury had before them legal documentary evidence, no inquiry into sufficiency of evidence is indulgеd.
2. Criminal law 1179—On petition for certiorari to Court of Appeals, Supreme Court was confined to consideration of statement of evidence found in that court‘s opinion.
On petition for certiorari to Court of Appeals to review its judgment in manslaughter prosecution, Supreme Court was confined to consideration of statement of tendencies of evidence as found in opinion of Court of Appeals as regards ruling refusing requested charge.
3. Criminal law 1179—Matter not considered in opinion of Court of Appeals could not be reviewed by Supremе Court on petition for certiorari.
Claim that substance of charge in manslaughter prosecution, refusal of which Court of Appeals held was error, was embraced in other charges given for defendant and in general charge of court, not having been considered or treated in opinion of Court of Appeals, was not before Supreme Court for determinatiоn on petition for certiorari to Court of Appeals, so that writ could not be rested upon holding of Court of Appeals that refusal of charge was error.
Sayre and Thomas, JJ., dissenting in part.
Certiorari to Court of Appeals.
David Gore was convicted of manslaughter in the first degree, and he appealed to the Court of Appeals. The judgment of conviction being there reversed, the State petitions for certiorari to rеview and revise the judgment and decision of that court in said case. 114 So. 791. Writ denied.
Charlie C. McCall, Atty. Gen., and Jim Davis, Sol., of Birmingham, for petitioner.
Even if charge 98 was good, its refusal was not error, since its substance was given in other charges. When it appears that witnesses were examined by the grand jury or that the grand jury had before them legal documentary evidence, no inquiry into the sufficienсy of the evidence is indulged. 31 C. J. 808; 28 C. J. 612; Walker v. State, 17 Ala. App. 555, 86 So. 257; Havenor v. State, 125 Wis. 444, 104 N. W. 116, 4 Ann. Cas. 1052; Washington v. State, 63 Ala. 189; Agee v. State, 117 Ala. 169, 23 So. 486; Bryant v. State, 79 Ala. 282; Carl v. State, 125 Ala. 89, 28 So. 505.
Wm. E. Fort, of Birmingham, opposed.
No brief reached the Reporter.
PER CURIAM. The reversal of the judgment of conviction in this case by the Court of Appeals appears to be rested upon two rulings of the trial court. The first, upon motion to quash the indictment, upon the refusal of the trial court to require or allow the stenographer, who was present and noted the evidence in the grand jury room, tо refer to his notes in testifying as to what the witnesses testified before the grand jury. Upon this
“When it appears witnesses were examined by the grand jury, or the jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged.”
In Agee v. State, 117 Ala. 169, 23 So. 486, the court gave application to this rule, and sustained the trial court in refusing to allow the defendant to prove the testimony of the witness before the grand jury. The rule was again applied in Washington v. State, 63 Ala. 189, when it was attempted to show the testimony before the grand jury in order to establish that there was no legal evidence, but only hearsay, before that body, connecting the defendant with the crime charged. The refusal of the trial court to receive this testimony was approved, the court saying:
“In refusing to entertain the motion to strike the indictment from the file and quash it, the city court ruled in precise accordance with what was said by this court in Sparrenberger‘s Case, 53 Ala. 481 [25 Am. Rep. 643]. We there said, ‘When it appears witnesses were examined by the grand jury, or the jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged.’ In this case, a competent witness was sworn and examined before the grand jury. The precise point urged in argument is that the grand jury found the bill on insufficient testimony, in this: That while there was proof that a burglary had been committed as charged, no legal evidence was given before that body, showing that the accused was the guilty offender. To allow such inquiry and testimony, would be not only to disregard what was said in Sparrenberger‘s Case, copied above, but would greatly retard and embarrass thе administration of the law.”
The Sparrenberger‘s Case was again approved in Bryant v. State, 79 Ala. 282, and the rule therein announced has not been departed from in this court. It was differentiated in Allen v. State, 162 Ala. 74, 50 So. 279, 19 Ann. Cas. 867, from cases charging seduction by reason of special statutory provisions in reference to that offense.
[1] For the stenographer in the instant case to testify from his notes as to the testimony of the witnesses before the grand jury could only tend to the establishment, vel non, of the sufficiency of the evidence and would transcend the rule established by the foregoing authorities.
We are therefore of the opinion reversible error cannot be rested upon this ruling of the court, and that the holding of the Court of Appeals upon this point is erroneous.
[2, 3] Upon a consideration of the statement of the tendencies of the еvidence as found in the opinion of the Court of Appeals, to which this court is here confined, we are not of the opinion the ruling of the Court of Appeals as to the refusal of сharge 98 pre
Writ denied.
ANDERSON, C. J., and SOMERVILLE, GARDNER, BOULDIN, and BROWN, JJ., concur.
SAYRE and THOMAS, JJ., are of the opinion charge 98 was properly refused and, being in accord with the majority opinion upon the other questions treated, would award the writ. They therefore dissent.