Fowler v. State

54 So. 115 | Ala. | 1910

SAYRE, J.

Whether the defendant should be given a continuance, or whether the state should be put to an admission of defendant’s showing for the testimony of the absent witness as a condition upon which the trial was to be had presently, were matters within the discretion of the trial court, not to be revised except for abuse, and the court bad the right to inform that discretion by taking evidence as to the value of the testimony of the witness in any event. No abuse appears. No compulsory process was requested, and hence was not refused. There ivas no error in ruling the defendant to trial without his witness and without an admission of the offered showing.

The defendant was indicted for the larceny of $27, lawful money of the United States. The evidence went to show the loss of about the sum charged. The evidence of the corpus delicti was circumstantial, but on consideration of such evidence, along with several confessions shown, it was for the jury to assign to it the proper weight, and to say whether defendant’s guilt had been established beyond a reasonable doubt.—Ryan v. State, 100 Ala. 94, 14 South. 868.

Evidence that the defendant, a iter a conversation with witness in reference to the money that had been lost, signed a note for $22 “to pay back the money” ivas competent as evidence of an incriminating admission in the nature of a confession. This evidence was not open to the objections taken to it Avhich were that it constituted a ‘Variance” from the offense charged in the indictment in that it related to a smaller sum, and that it Avas irrelevent. It related to the offense charged. In trials for larceny it has ahvavs been considered that evidence of the taking of a smaller or larger sum than that charged might be received, and the implied admission of guilt involved in giving the note, under the circumstances testified to by the state’s Avitness, was evidence relevant to the charge. In connection with the evidence touching the execution of the note and its attendant circumstances, the state offered testimony which went to show that the giving of the note was the free act of the defendant uninfluenced by hope of favor or fear of barm. The defendant seems to have at the time accepted that proof as sufficiently establishing the voluntary character of the act. At least he offered at the time no testimony contra, nor did he interpose objection on the ground that his inculpatory admission had been constrained: True, the defendant at a later stage of the trial challenged the weight ”of the circumstance so shown by testimony to the effect that it had been induced . by threats, but he made no motion to exclude, nor did he in any other way invite the court to rule whether the evidence was incompetent for the reason now assigned. And in any event its admissibility was for the decision of the judge, subject to review here upon proper exception reserved. Its weight was for the jury, and that matter seems to have been submitted to them with an instruction which was perhaps unduly favorable to the defendant.

The state might have shown that subsequent to the larceny alleged defendant had money in quantity unusual for him, and in that event the defendant would have been permitted to explain his circumstances by showing that he got the money honestly. But the state offered no such proof. It did not attempt to prove that defendant was ever seen or known to have money after the commission of the offense alleged. In this state of the case, the fact that defendant had borrowed or been paid sums of money had no possible bearing on the issue presented to the jury by the indictment.

The fact that there had been a difficulty between the state’s witness Byrd and the defendant would have been relevant as showing the animus of the witness, but the jury’s attention ought not to have been drawn away from the issue at hand by looking to the particulars and merits of the difficulty. The defendant’s question about tbe difficulty at tbe mill asked for tbe particulars of that difficulty. Tbe .objection to it was properly sustained.

Tbe defendant was not entitied to an. acquittal because tbe owner of the money and tbe person in whom the indictment laid ownership bad died between tbe time of tbe larceny and tbe indictment found. Tbe indictment spoke as to tbe time of tbe offense. The death of tbe owner in tbe meantime did not operate as a con-donation by the state of tbe defendant’s offense.

Charges in respect to tbe weight to be given to tbe evidence of tbe incriminating admission involved in tbe giving of tbe note and its attendant circumstances were mere arguments, and were refused without error.

Affirmed.

Dowdell, C. J., and Anderson and Evans, JJ., concur.