Henderson v. State
70 Ala. 23
Ala.
1881
Check Treatment
SOMEEVILLE, J.

The indictment in this case is for the crime of burglary, as defined and prohibited by section 4343 of the Code of 1816. It charges that, before the finding of the *24indictment, George Henderson, the appellant, and one Henry Mattison, “broke into and entered the storehouse of Andrew J. Street, in which goods or merchandise were kept for use, sale, or deposit.”

The descriptive words of the statute are, “in which any goods, merchandise, or other valuable thing, is kept for use, sale or deposit.” The question of the sufficiency of indictments, framed under this section of the Code, has been ruled on very frequently by this court; and we think the following rule may be declared as having been established: Where the indictment describes the specific class of articles mentioned in the statute, as kept in the building for use, sale, or deposit, — as, for example, either goods or merchandise, — the law conclusively presumes that they are of value, and no averment need be made in the indictment that they are valuable. If, however, the thing deposited is alleged'to be any thing else than goods, or merchandise, it must be averred to be vaVaable, or a thing of value; though it is not necessary that its particular value in money shall be stated, this being a matter of evidence merely. Norris' case, 50 Ala. 126; Wick's case, 44 Ala. 398; Matthews' case, 55 Ala. 65; Davis' case, 54 Ala. 88; Neal's case, 53 Ala. 465; Clark’s Cr. Dig. § 86, and cases cited. Under this rule, the indictment was sufficient; and it averred with sufficient perspicuity, also, that the articles described were kept, in the' building described, at the time of the alleged burglary.

The court did not err in excluding the witness, Mattison, from testifying in behalf of his co-defendant, the appellant. It is trno that he had just pleaded guilty to the indictment, but no judgment of conviction had been rendered by the court at the túne he was offered as a witness. The authorities are not entirely in accord on this question. In the case of The People v. Bill, 10 John. 95, it was held, that where two defendants were jointly indicted for assault and battery, and pleaded separately, oiie of them being tried first, the other defendant was incompetent to testify for him. In Rex v. Lafore, 5 Esp. R. 155, Lord Ellenborough ugii’rejected the testimony of a co-defendant who had suffered judgment; remarking, at the time, that he had never known such evidence to be offered. In Commonwealth v. Marsh, 10 Pick. (Mass.) 57, where two persons were jointly indicted for forgery, and the trial of one was postponed, it was held, by the Supreme' Court of Massachusetts, that he was riot competent to be a witness for the other. It was said by Wilde, J., that if parties thus jointly indicted were permitted to testify for each other, they might escape punishment by perjury, and “thus they would be allowed mutually to protect each other, and evade the ends of justice.”

The proper practice seems to be, that where two or more *25•defendants are jointly indicted, neither is a witness for or against the others, unless some order is made in the case, which .amounts to an acquittal or a severance. The trial of the one proposed to be offered as a witness must be severed from that •of the co-defendant against whom he is offered; or else a nolle-prosequi must be taken, or a verdict of acquittal entered in favor of the proposed witness, as authorized by statute. Whart. Cr. Ev. § 439; 1 Whart. Cr. Law, § 790; Hawk. P. C., b. 2, c. 46, § 90: Noye’s case, 40 N. J. (Law), 429; Code, 1876, § 4894. Under this principle, there was no such severance as would make the witness Mattison competent to testify in this case, and the court did not err in exeluding him.

There was error, in our opinion, however, in excluding the testimony of the witness Jane McElderry. There was evidence before the jury tending to prove-that the defendant, Henderson, was in Borne, Georgia, at the time of the alleged burglary; that he returned home after this event, and so soon as he first discovered the valise, which was identified as stolen property, in his house, he asked his wife, in presence of the witness, “Whose valise is that? And how came it here?” If these questions, as the evidence tends to show, were put to the defendant when he first discovered the stolen property on his premises, they are manifestly relevant, as going to the very fact of possession.

The rule is well established, that the recent exclusive possession of the fruits of crime, soon after its commission, is prima facie evidence of guilty possession.—1 Greenl. Ev., § 34. Tet, if the party, at the time he is found in possession of the stolen property, and before he has had the opportunity to concoct evidence exculpatory of himself, give a reasonable and probable account of the manner in which he became possessed of the property, this evidence should always be allowed' to go to the jury, so as to rebut the presumption of guilt which might otherwise arise. We are aware of the fact, that this principle has not been always observed in the past decisions of this court; notably in the case of Taylor v. The State, 42 Ala. 529; and again, perhaps, in Maynard v. The State, 46 Ala. 85. These cases fail to make the proper distinction between an explanation given at the time the defendant is first discovered in possession of the fruits of the crime, and his declarations made at other times, when there was opportunity for the deliberate premeditation of a false story. Such was the case of Spivey v. The State, 26 Ala. 90, upon the authority of which the two cases above appear to have been decided.

The principle was, however, recognized and applied in Crawfords case, 44 Ala. 45; and is well sustained by authority from the earliest adjudications in English criminal jurisprudence down to the present day.—1 Lead. Cr. Cases, 365, and cases *26cited in note; 2 Bish. Cr. Proc. §§ 740-746; Clark’s Cr. Dig. § 635; Hampton v. The State, 5 Tex. (Ct. Ap.) 463 ; Whart. Cr. Ev. $§ 691, 761.

Mr. Bishop indorses this rule as a reasonable doctrine, and adds: “ Such an explanation, especially if given instantly upon the property being discovered, and tlie accusation brought home to the prisoner’s knowledge, is deemed a part of the res gestee.”—2 Bish. Cr. Proc. § 746. In Cooper’s ease, 63 Ala. 80, the declaration of the defendant was excluded, no doubt on the ground that there was ample time for the concoction of an exculpatory statement. It was not contemporaneous with the imputation of guilt by the arresting officer. It was, therefore, or may have been, premeditated, and not instinctive; and, in such cases, is not admissible as either being explanatory of possession, or a part of the res gestae.—Whart. Cr. Ev. § 691.

The cpiestions put by defendant to his wife, as testified to by the witness, Jane McÉlderry, were a part of the res gestae, explanatory of the fact of possession, which might otherwise be inferred by reason of the stolen property being found on the premises under defendant’s control. They should have been permitted to go to the jury, to be passed on and weighed' by them for what they were worth, and, as evidence, would be more or less cogent or weak, according to all the other facts and circumstances of the case.

The judgment of the Circuit Court is reversed, and the cause is remanded.