Messer v. StateMesser v. State
- Reporters:
- , ,
- Before:
- Bricken
The evidencе in this case disclosed, without dispute, that the automobile of H. E. Douville, the injured party named in the indictment, was stolen from in front of his apartment, where it had been parked on Perry street in the city of Montgomery. The theft of the car occurred on the night of Decembеr 28, 1928. The evidence also shows, without conflict, that this appellant was in possession оf this stolen car a day or two after it had been stolen, and that the motor number of the car had been changed from its original number 355815-A, to 350840. On the trial of this case this appellant testified, “I bought this car from Claude McLain. He lives in Montgomery. I bought it after twelve o‘clock at night at my home in Dothan and paid him $150.00 for it.” The car in question was practically a new cаr having been in use only seven weeks at the time it was stolen, and the evidence shows that the owner had paid $667.06 for it.
This accused having admittedly been in possession of this stolen automobile within a day or two after it had been stolen, the duty rested upon him of explaining his pоssession thereof. The law in this state is: The recent possession of stolen goods imposes upon the possessor the onus of explaining the possession, and, if he fails to mаke a reasonable explanation, it raises a presumption of guilt which will suppоrt a verdict of conviction. Jordan v. State, 17 Ala. App. 575, 576, 87 So. 433.
The corpus delicti having been proven as aforеsaid, likewise the possession by this appellant of this recently stolen car also рroven without conflict, the controlling question for the jury to determine from the evidence was whether or not his explanation of his possession was a reasonable one. In this connection the jury was called upon to consider the fact that this accused admitted he purchased this car in the middle of the night from a purported seller by the name of Claude McLain who he stated lived in Montgomery where the car was stolen, and wherе this case was tried, and that the price paid for the automobile was admittedly wholly out of proportion to its real value. They were also
The court properly refused the affirmative charge. Several excеptions were reserved during the trial to the court‘s rulings on the admission of evidence. We do not regard either of these rulings as prejudicial error; nor do we think that any of the rulings cоmplained of had the effect of diverting the jury from rendering a true and correct verdict upon the issue of fact all of which was practically without dispute. The jury decided, аnd we think properly so, that the defendant failed to satisfactorily explain his possеssion of the recently stolen property, and having so failed, after being allowed еvery opportunity by the court to do so, the principle of law hereinabove аnnounced applied directly. Appellant was accorded a fair and impаrtial trial.
The judgment is affirmed.
Affirmed.
On Rehearing.
The bill of exceptions shows that the defendants made known to the court (when entering upon the trial) that there were three defendants to be jointly tried, and insisted and requеsted the court to allow each defendant to strike two jurors, after the solicitor had first striсken one from the list of jurors. The court overruled this insistence and denied the request, and defendant excepted. The court intimated that the three defendants jointly should strike two jurоrs, and the state one. No further effort appears to have been made by the defendants to avail themselves of the number of strikes allowed by the statute by offering or attempting to strike more than two jurors for the defendants. The insistence that each of the thrеe defendants to be jointly tried were entitled to two strikes each, making six strikes for the defеndants to one for the state, cannot be sustained. By express terms of the statute when two or more persons are tried jointly, the solicitor shall strike one and each defеndant shall have the right to strike off one name and they shall continue thus to strike off names until only twelve remain, and the twelve thus selected shall be the jury charged with the trial of the defendants.
Application overruled.