Huggins v. State, 41 Ala. 393

Huggins v. State

41 Ala. 393 | Ala. | 1868

A. J. WALKER, C. J.

The indictment alleges, that the persons charged feloniously bought or received two horses, “of the value of one hundred dollars each, the personal property of Samuel Watford, which said horses had before then been feloniously taken and carried away, and they (said John Huggins and Columbus Huggins) well knowing that the said horses had been feloniously taken and carried away.” It is objected to this indictment, that it *398does not show a knowledge of the larceny at the time of the buying or receiving. We do not think this objection is well taken. The words “ well knowing,” &o., obviously refer to and qualify the previous allegation, that the defendants bought or received, and declare the existence of the knowledge at the time of such buying or receiving. Any other construction would do violence to the obvious meaning of the indictment.

2. The defendant made a comprehensive motion to rule out all the evidence relative to his bail-bond, and the compromise thereof, and a note given by the defendant’s bail to Watford, in satisfaction for the horses lost. Certainly a part of this evidence was legal, and the court committed no reversible error in overruling the motion, notwithstanding the rest of the evidence may have been inadmissible. The evidence disclosed that a suggestion was made to the defendant, that the accruing of a liability upon the bail-bond might be risked for six months longer, and that, if necessary, it might be compromised ; and that the defendant replied to the suggestion, “ Do as you see fit.” The admissibility of this evidence is referrible to the doctrine, that the conduct of the accused, in reference to the prosecution,tending to authorize the implication of an admission, is competent evidence against him.—Johnson v. State, 17 Ala. 618; Martin & Flinn v. The State, 28 Ala. 71.

3. The court below refused to give the charge asked by the defendant, as follows : “ Although the defendant may have concealed, or aided in the concealment of said horses, knowing them to have been stolen, they cannot find him guilty, as charged in the indictment.” It is true that the defendant could not be convicted, in this case, for concealing, or aiding in the concealment of the stolen property; yet it might be that the defendant concealed, or aided in the concealment of the property, and also received, or bought it, knowing it to be stolen. The defendant, therefore, was not entitled to the charge, that the defendant was not guilty, notwithstanding he may have concealed, or aided in the concealment of the stolen horses. The explanatory charge given by the court, of its own motion, was unobjectionable.

*3994. The charge given at the instance of the solicitor, to the effect that the defendant might commit the offense without seeing the property, was obviously correct. The defendant could certainly be guilty of committing the felony charged, through the instrumentality of others, without performing the act of receiving or buying in person, or actually seeing the property.

5. There was evidence in the court below reasonably conducing to prove the venue. We do not understand the decision in Frank v. State, (39 Ala. 670,) as going to the extent of holding that this court will pass upon the sufficiency of the evidence of venue, when no question was raised in the court below. That decision pertains to a case where it affirmatively appeared that there was no proof tending to show venue, and to such cases its authority and reasoning must be confined.

Affirmed.