48 So. 2d 563 | Ala. Ct. App. | 1950
This appellant stands convicted under an indictment charging him with the larceny of "one iron coal stove from the building of the New Harmony Baptist Church, an unincorporated religious society, in Cullman *316 County, Alabama, of the value of $40.00, the personal property of the New Harmony Baptist Church," etc.
The evidence presented by the State was to the effect that a stove was taken from the church in question, and was later located by members of the church in a junk yard in Attalla, Alabama, and identified by them as the stove formerly in the church.
Employees of the junk yard identified the defendant as being the person who had sold the stove to them, the defendant at the time having 7 or 8 stoves in a truck. All of the stoves when brought to the junk yard were "tore up."
Appellant's counsel strenuously argues that the lower court erred in refusing defendant's request for the affirmative charge because of the insufficiency of the State's evidence to establish the character of the stove as personal property.
The evidence pertaining to this question tends to show that the stove was an iron "Jumbo" stove in five sections, and was higher than a man's head. It had been used in the church for some twenty years.
Robert Edwards, an employee of the junk yard, testified that the stoves brought to him by the defendant, and which included of course the stove in question, were "just ordinary stoves" — "They were just ordinary cast iron heaters; I've seen several of them around in school houses."
In Langston v. State,
Virtually this same statement is to be found in Teaff v. Hewitt,
However, as pointed out by an able writer on personal property law, "these three tests are only media for determining the ultimate question of whether under all the facts and circumstances the ordinary reasonable man of the community would consider the article in question as a part of the real estate." Brown on Personal Property, p. 628.
Primarily whether or not an article is a fixture is a question of fact to be determined by a jury. If the facts undisputably show the character of an article one way or the other then the character is determined as a matter of law.
Certainly in this climate ordinary heaters or stoves are regarded as in the nature of furnishings, and therefore personalty. Under the description of the stove given by the witness Edwards, we think the jury by the application of their common knowledge as to the nature of ordinary stoves used in rural churches in their communities were authorized in concluding that the stove in this case was personalty.
The verdict returned by the jury was: "We the jury find the defendant guilty." This is a general verdict, and while the jury did not assess the value of the stove stolen, the verdict is referable to the indictment, which alleges the value of the stove to be $40.00. *317
This record is in our opinion free of error, probably injurious to the substantial rights of this accused. It is therefore ordered affirmed.
Affirmed.