King v. State
72 So. 552
Ala. Ct. App.
1916
Check Treatment
BROWN, J.

Thе question of controlling importance is: Can one who distrains cattle damage feasant be convicted of larceny on showing an intent to convert the property and deprive the owner of the use after it comes into his possession ?

“At common law, where cattle trespassed upon the lands of another, the landowner was permitted to distrain the cattle thus damage feasant till their owner should make him satisfaction.”— 2 Cyc. 400 (e) ; Richardson v. Carr, 1 Har. (Del.) 142, 25 Am. Dec. 65; Bonner v. DeLoach, 78 Ga. 50, 2 S. E. 546; 3 Blackstone’s Comm. 211.

And under the statute in force in Monroe county, the defendant, if the animal was at large in a district where stock was prohibited from running at large, had the right to take it up and hold it until the proper statutory notice ‍‌​​​​​‌​​​​‌​‌‌​‌‌‌‌​​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌‌‌​‌‌‌​‌​‌‍could be given, unlеss the owner intervened and claimed it and paid the fees allowed by the statute, and after giving such notice, if no claim was made, to sell the animal at public auction. — Acts 1896-97, pp. 435-35.

*70 (1, 2) It is a familiar rule that when one acquires the possession of property tortiously, and afterwards conceives and executes the purpose to convert it, he may be guilty of larceny.— Weaver v. State, 77 Ala. 26; Dozier v. State, 130 Ala. 57, 30 South. 396. Also that where one has the bare charge or custody of property of another, the property being under the dominion and control of the owner., the party having thе bare custody may be guilty of larceny if he converts it to his own use with the purpose of depriving the owner of it. — Boswell v. State, 1 Ala. App. 182, 56 South. 21; Holbrook v. State, 107 Ala. 154, 18 South. 109, 54 Am. St. Rep. 65.

(3) However, if, as contended by the defendant, the animal, the subject of the alleged larceny, was trespassing оn his growing crops and he took it into his possession under the local acts, the principles above statеd have no application. Where the party charged assumes dominion over the property and takes it ‍‌​​​​​‌​​​​‌​‌‌​‌‌‌‌​​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌‌‌​‌‌‌​‌​‌‍into his possession by prima facie lawful authority, before he would be guilty of larceny, the felonious intent must еxist at the time dominion over the property is assumed, thus making the use of the supposed lawful authority a mere сloak to cover up the criminal purpose, and constituting a fraud on the law. — Common wealth v. Mason, 105 Mass. 163, 7 Am. Rep. 507, and cases cited in note page 510.

In view of the evidence in the сase showing without dispute that the animal in question was taken up by the defendant while at large in a stock law district, аnd trespassing upon his growing crops, the oral charge of the court to which exception was reserved and the explanation accompanying the special charges given at defendant’s instance are in conflict with the principles above stated, and constitute reversible error.

The question as to whethеr the criminal intent existed at the time of the taking was, under the evidence, for the jury, and the affirmative charge wаs properly refused.

Charges A, B, Bl, D, E, and 12 ignore the question of the existence of a felonious intent ‍‌​​​​​‌​​​​‌​‌‌​‌‌‌‌​​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌‌‌​‌‌‌​‌​‌‍at the time the defendant assumed dominion over the property and were well refused.

(4) Charges 9 and 11 authorize the jury to basе their verdict on part of the evidence, and were properly refused.

(5) It is not essential that the thief should еntertain the intent to convert the property to his own use; it is enough that the intent be to deprive the owner of the property. — Higgs v. *71 State, 113 Ala. 36, 21 South. 353; Fort v. State, 82 Ala. 50, 2 South. 477. , On this principle, charge 8 was properly refused.

(6,7) The question to the witness Northrop: “Did you get any information about where your yearling was, and, if so, what steps did yоu take to recover it?” clearly called for hearsay testimony, and the objection ‍‌​​​​​‌​​​​‌​‌‌​‌‌‌‌​​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌‌‌​‌‌‌​‌​‌‍should have beеn sustained. And the question eliciting testimony as to what steps he took to recover the property callеd for matter res inter alios acta, and the objection should have been sustained.

(8, 9) The act apprоved March 6, 1915, provides “that comparison of a disputed writing with any writing admitted to be genuine or proven to the rеasonable satisfaction of the court to be genuine shall in civil and criminal cases be permitted to bе made by witnesses who are qualified as experts or being familiar with the handwriting of the person whose handwriting is in question and such writings and the evidence of witnesses respecting the same may be submitted to the court or jury trying the case аs evidence of the genuineness or otherwise of the writings in dispute.” — Laws 1915, p. 134.

Under what is known as “the old English rule” obtaining in this statе before the enactment of this statute, it was not permissible to prove a disputed handwriting by comparison — thаt is, by placing a writing not in evidence in the case in juxtaposition with the one in dispute for the purpose of аllowing a witness or the jury to inspect the two in determining whether or not they were written by the same person. — Moon v. Crowder, 72 Ala. 79; Snider v. Burks, 84 Ala. 53, 4 South. 225; Curtis v. State, 118 Ala. 131, 24 South. 111; Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170; Jones on Evidencе, § 551. This rule was ‍‌​​​​​‌​​​​‌​‌‌​‌‌‌‌​​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌‌‌​‌‌‌​‌​‌‍modified in England by statute (St. 17 & 18 Vict. v. 125, § 27; St. 28 Vict. c. 18, § 8), providing: “Comparison of a disputed handwriting with any writing proven to the satisfaction of the judge to be genuine, is permitted to be made by witnesses; and such writings and the evidence of witnesses resрecting the same may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in disрute.”

Our statute is a literal copy of the one last quoted, and its purpose is to modify the rule to the extent оnly of allowing a comparison by a competent witness — one who has qualified as an expert or shown to have such familiarity with the handwriting of the person whose handwriting is in dispute as to authorize the *72 witness to give an opiniоn thereon — and the two writings are submitted along with the testimony of the witness for the consideration of the jury. However, under the rule as modified by the statute, it is not permissible to submit the two writings without such comparison and the testimony of such witness thеreon to the jury for comparison, and the objection of the defendant to this method of comparison should have been sustained.

For the errors pointed out, let the judgment be reversed.

Reversed and remanded.