Latikos v. State

88 So. 47 | Ala. Ct. App. | 1921

This prosecution originated in the recorder's court of Mobile. The record discloses the fact that the original affidavit in that court charged this defendant with the offense of buying, receiving, concealing, or aiding in concealing two boxes of cigars of the value of $6, the personal property of Ogburn-Griffin Grocery Company, a corporation, knowing that it was stolen, and not having the intent to restore it to the owner. This charge being a misdemeanor, the said recorder had jurisdiction to finally try and determine the same and to render judgment therein. Code 1907, § 1221.

Upon this affidavit a warrant was issued for the arrest of this defendant for the alleged offense and was signed by one D.H. Eddington, recorder of the city of Mobile. This warrant was returnable to the recorder's court, but, if the warrant was ever executed, there is nothing in this record to indicate it. And as the record in this case contains no judgment in said recorder's court, or other adjudication thereof, as far as this court may know, the cause must be still pending in said recorder's court of the city of Mobile. This being true, there is nothing to show how the circuit court of Mobile county, the judgment from which this appeal is taken, acquired jurisdiction of this cause. It is necessary that this should affirmatively appear by the record. Moss v. State, 42 Ala. 546; Haynes v. State, 5 Ala. App. 167, 59 So. 325; Howard v. State,81 So. 345;¹ Perry v. State, 81 So. 858;² Peeples v. State, ante, p. 430, 84 So. 859.

On the trial of this defendant in the circuit court it appears that the state relied principally upon the testimony of the witness Clarence Leland, who testified, among other things, that he had been in the employ of the Ogburn-Griffin Grocery Company, and that he delivered the two boxes of cigars, which he knew had been stolen by another negro, one McCants, to defendant, and that he himself had been discharged from the employ of said Ogburn-Griffin Grocery Company for stealing, and was not at the time in their employ.

On cross-examination of the defendant while testifying as a witness in his own behalf the court permitted the state, over the objection of the defendant, to show by said witness that he had formerly been convicted of receiving stolen property. There was no error in this ruling of the court. Code 1907, § 4009; Prov. Life Accident Ins. Co. v. Black, 15 Ala. App. 437,73 So. 757; Sims v. State, 14 Ala. App. 24, 70 So. 959; Wells v. State, 131 Ala. 48, 31 So. 572. This testimony was permissible for the purpose of affecting his credibility as a witness only, and the fact that there was an appeal pending from the judgment of former conviction did not render this testimony incompetent. Viberg v. State, 138 Ala. 100, 35 So. 53, 100 Am. St. Rep. 22. By a reversal of the judgment appealed from only could this burden upon his testimony be removed. And, while it cannot affect the ruling of the court complained of, this court judicially knows that the said former judgment of conviction was on a subsequent day reversed and remanded by this court. Latikos v. State (November 9, 1920) ante, p. 592,88 So. 45.

As before stated, it may be shown that a witness, even though he be the defendant, may be examined touching his conviction for crime involving moral turpitude, the purpose of which goes to his credibility; but upon the trial of a defendant in a criminal prosecution it is not permissible to go into the particulars of charges upon which the defendant had been previously convicted. Waters v. State, 117 Ala. 108, 22 So. 490. In the instant case the court permitted the solicitor, over the objection of the defendant, to inquire into the particulars of the former conviction and required the defendant to give the details in connection therewith. This was error, for it is clear that, if the defendant is made to answer as to the particulars and details of the former conviction, he in turn, under the general rules of evidence, could offer evidence in rebuttal thereof, and this in effect would result in the retrying of the issues of the former case, which issues had been concluded by the judgment rendered therein; in other words, the fact of the former conviction of the witness of a crime involving moral turpitude is admissible, but the particulars and details of such conviction are not.

For the error apparent on the record, and for the error in the ruling of the court upon the testimony above noted, the judgment of conviction in the circuit court is reversed, and the cause remanded.

Reversed and remanded.

¹ Ante, p. 9.

² Ante, p. 80.