Hester v. State, 103 Ala. 83

Hester v. State

103 Ala. 83 | Ala. | 1893

COLEMAN, J.

The defendant was convicted of the offense of buying and receiving stolen property, knowing the same to have been stolen, and not having the intent to restore it to its owner. No grand jury had been summoned for the regular term of the court, at which the indictment was presented. Section 4316 of the Criminal Code is as follows : “If, in consequence of any neglect on the part of the judge of probate, sheriff or clerk of the circuit or city court, or from any other cause, no grand or petit jury is returned to serve at any *88term of tlie court, or no petit-jury summoned for any week thereof, the court may, by an order entered in the minutes, direct the sheriff forthwith to summon eighteen persons qualified to serve as grand jurors, and the requisite number to serve as petit jurors.” The grand jury was summoned and organized under this provision of the statute. The grand jury thus organized was a legal body, and the court did not err in refusing to quash the indictment, upon the ground that it was preferred by an illegal grand jury. Under the circumstances the court complied strictly with the law. The indictment is sufficient in form, and the demurrer was properly overruled.

There was no error in admitting the evidence which tended to identify the goods, and to prove ownership. The court erred in permitting the witness Adams to testify as to the conversation between himself and the defendant’s witness, King. These statements of the witness King to Adams were merely hearsay as testimony against the defendant. Such statements were admissible only for the purpose of impeaching the witness King, and to render them admissible for this purpose, it was necessary to lay a proper predicate, by first asking the witness King, giving time, place and circumstances, whether or not he had made such statements. No such or other predicate was laid for the introduction of this conversation. For the same reason the court erred in allowing the witness John Rush to testify as to the conversation he had with the witness King. Tnese errors require a reversal of the case

The State was not required to satisfy the jury as to the precise time when, or the exact place where, the larceny was committed, or to identify the thief. — The State v. Murphy, 6 Ala. 845. It was sufficient if the jury were satisfied beyond a reasonable doubt that the goods were stolen, and that the defendant purchased them, or received them, knowing they were stolen, and not having the intent to return them to the owner, as charged in the indictment. — Collins v. The State, 33 Ala. 434.

We presume the charge requested, which had reference to statements of third parties, was based upon the conversations had with the witness King, which we have held were erroneously admitted.

We find one charge refused, which, on first reading, *89we were of opinion should have been given. It is as follows : “The court charges the jury that a probability of the defendant’s innocence is a just foundation for a reasonable doubt of his guilt, and, therefore, for his acquittal; and if, from all the evidence in this case, they believe the defendant’s account of this transaction is the correct one, then they must acquit the defendant.” The first part of this charge asserts the law correctly, as has been held many times. — Prince v. The State, 100 Ala. 144 ; Bain’s Case, 74 Ala. 38; William’s Case, 98 Ala. 22. The latter part of the charge is, that “if, from all the evidence in the case, they believe the defendant’s account of the transaction is the correct one, then they must acquit the defendant. ” We have examined with care the testimony of the defendant, and find in the light of all the evidence that defendant’s “account” may be “correct, ” and yet the jury might find him guilty. The indictment is for buying or receiving stolen property. In his testimony the defendant states that ‘ ‘he did not know whose goods they were, or where they came from.” He states that “the peddler (from whom he bought the goods) said that he was from Sand Mountain, and that he bought the goods in Rome, Georgia. * * * The peddler gave his name as‘Hell Roaring Johnson.’ ” All this might be true, and yet the defendant, under the circumstances, may not have credited the statement of the peddler. It nowhere appears from his own statements that the goods were bought in good faith. His version of the transaction might be true, and yet a jury might believe, in the light of all the evidence, that the goods were bought or received under such circumstances that a reasonable man of ordinary observation must have known they were stolen. — 33 Ala., supra. The defendant stated, he did not know the peddler, had never seen him before nor since, and “supposed he was going under a fictitious name.” These statements, considered in the light of other evidence in the case, did not require an acquittal, although they may have been true. The court did not err in refusing the charge.

For the errors pointed out in the admission of illegal evidence; the case is reversed.

Reversed and remanded.