Kirby v. State

139 Ala. 87 | Ala. | 1903

HARALSON, J. —

There was no error in refusing to exclude tbe evidence of .tbe witness Sarratt, on the ground that it was illegal and irrelevant, and because the defendant, — employing tbe language of tbe objection, — “was charged with stealing tbe quilts from Sa-natt, and tbe evidence showed that tbe articles were taken from Simon P, Sarratt.” If there was any illegality or irrelevancy in tbe witness’ evidence, it was not all subject to such objection, for most of it was legal and relevant. Tbe motion went to tbe exclusion of all of it on those two grounds, and was, as for these, properly overruled. Tbe court was not bound to separate the good from the bad, if any of it Avas subject to the objection interposed. — Lowe v. State, 88 Ala. 8.

As to tbe other ground, there was no error in overruling it. Tbe court inspected tbe indictment, which has not been certified here for our inspection, and tbe solicitor Avho wrote it, testified that tbe name of tbe OAvner of the property stolen Avas written S. P. Sarratt and not S. P. Sanatt. Tbe court after inspecting tbe paper, so ruled. This court Avill not revieAV such ruling in the absence of tbe original or a facsimile thereof properly authenticated. — Bodine v. State, 129 Ala. 106.

S. P. Sarratt testified that at tbe time tbe offense aauis committed be Avas living at Alabama City; that when he moved to that place a year before the property was taken, he left at his home in Cherokee county, Alabama, among other things, tbe four quilts and blanket, — which are charged to have been stolen, — for bis bed on his farm; that be often returned there to attend to bis business, and would remain a short time; that in July or March, 1901, be missed these articles out of bis house on the farm, and they were found in tbe house of defendant, near tbe witness’ house, in said county; that the quilts and blanket were the property of the witness.

Mrs. Sarratt, the wife of S. P. Sarratt, testified that she made the quilts and blanket alleged to hare been stolen from S. P. Sarratt, after she married him, and that they were her property. She stated, also, “they are also my husband’s property, for what is mine is his, and what is his is mine. X made the quilts for the family.”

Charge 1 requested by defendant and refused, states a mere abstract legal principle, in the nature of an argument, which the court was. not bound to give.

Refused charge 2 was misleading, and there was no error in refusing it on that account. Under it the jury might have found the property to be that of the wife of S. P. Sarratt, and yet that her said husband had such possession of it as made it his property for all the purposes of the indictment. — Morningstar v. State, 52 Ala. 405; 3 Greenleaf on Evidence, §161.

The other refused charges 3 and 4, after what has been said in other connections, need not be considered.

Affirmed.