21 Ala. 240 | Ala. | 1852
— If a person makes a charge against another, that he is in possession' of stolen goods, we do not think it necessarily amounts to a charge of larceny, if the possessor fails satisfactorily to account for his possession. That the possession of stolen goods may, under certain circumstances, create the presumption of larceny in the possessor, is undeniable; but when, as in this case, words are used which negative the idea that any particular person was intended to be charged with the stealing, it cannot be converted into a charge of larceny by the failure of the possessor to account for his possession. The charge as given was, therefore, erroneous; and as injury may have resulted from it to the plaintiff in error, the judgment must be reversed.
As another trial may be had, it is proper to settle some other of the questions presented, with a view to the future direction of the case. Although, in our opinion, the affidavit does not amount to a charge of larceny against 'the defendant
The affidavit states, that certain goods have been stolen, and that they are in a trunk belonging to the defendant in error and another person. The question is, what, in common parlance, this statement amounts to. Davis v. Noak, 1 Stark. 377. No one, we apprehend, can doubt that when a part}*charges another with having stolen goods concealed in his trunk, it would be understood as a charge that they were concealed by such person. Such is the cleai’, common sense, every day meaning which would attach to the words; and we held, in Ewing v. Sanford, 19 Ala 605, that technical accuracy, in charges of this kind, was not necessary as an authority for the magistrate to act. So, in this case, that the affidavit was sufficient to authorize the magistrate to issue his warrant under the act of 1807, (Clay’s Dig. 480, §24,) to arrest the defendant in error, if the goods were, on search being-made, found in his trunk, we do not doubt; and we think, also, that as it amounted to a charge of felony, the justice was authorized to issue his warrant for the arrest of the defendant in error, without reference to the act last referred to.
In relation to the question presented upon the charge requested in relation to the arrest, the position cannot be sustained, that submission to process without compulsion does not amount to an arrest. We understand the law to be well settled, that no manual touching of the body or actual force is necessary to constitute an arrest. It is sufficient, if the party is within the power of the officer and submits. 2 N. H. 318; 1 Bald. 239; 1 Wend. 210.
For the error before referred to, the judgment must be reversed, and the cause remanded.
