Newsom v. State
107 Ala. 133
Ala.
1894
Check Treatment
BB.IOKELL, O. J.

The fact that on the night preceding the commission of the offense imputed to the defendant, the field in which the corn was standing was watch-. cd, was irrelevant. It was without tendency to prove or disprove any fact involved in the issue on which the jury was to pass ; it was an independent, collateral fact of which evidence could not be received, without widening the scope of the inquiry, prolonging the trial and obscuring the real issue. If the evidence was received, it would be the right of the defendant to controvert the fact by evidence, and a side issue would be formed, which, when determined, would not have aided in the solution of the material inquiry of the guilt or innocence of the defendant. The admission of this evidence compels a reversal of the judgment.

The offense charged in the indictment is strictly statutory ; the acts of which it consists, at common law constituted a mere trespass, redressed only by civil remedies. Sullins v. State, 53 Ala. 474; Holly v. The State, 54 Ala. 238. As created by the statute, it is single, indivisible ; it is grand larceny only ; there is involved in it no lower grade of offense. Because of the insignificance in value of the part of the crop taken and carried away, there can be no conviction of petit larceny. Value is not an element of the offense, and except so far as the statute declares it is not larceny. Gregg v. State, 55 Ala. 116 ; Pinckard v. State, 62 Ala. 167 ; Smitherman v. State, 63 Ala. 24. The several instructions requested on this point were properly refused.

There was no occasion for the averment that the sack was full of corn ; it was immaterial whether the sack was filled or only partially filled. Quantity, like value, is not an ingredient of the offense, and the word full was properly regarded as mere surplusage. 1 Bish. Cr. Proc. § 478 ; State v. Stedman, 7 Port. 495; McGehee v. State, 52 Ala. 324. The rulings of the court below in reference to this point, are free from error.

The animo furandi, the intent to steal, is the material ingredient of larceny at common law. When things, the subject of larceny at common law, are taken otherwise than by apparent robbery, in the presence of the owner and others, and the taker is conscious of their presence, the publicity of the taking affords strong presumption that the intent to steal does not exist; as clan*138destinity in the taking affords a strong presumption of the existence of the intent.—McMullen v. State, 53 Ala. 531; Johnson v. State, 73 Ala. 523. It is not of importance to consider whether there was such publicity in the taking as would afford evidence of the absence of the animo fwrandi ; nor whether at the time of the taking the defendant was conscious of the proximity of the owner and others. The criminating element of this offense, is not the intent to steal only ; it is the illegal depredation upon the outstanding crops of corn or cotton of the true owner. These are the staple agricultural products, and while in the condition of outstanding crops, are of necessity, more exposed to deprerations of theives or trespassers than any other species of property. It is protection against theft or trespass, the statute is designed to afford, and the taking and carrying away, may be committed under circumstances which at common law would constitute a trespass only, and not larceny ; the trespass is as offensive to the statute, as would be the larceny ; between them the statute leaves no room for distinguishing. If the taking was under a claim of right, the publicity of it would be a material fact in determining whether the claim was asserted in good faith, and it may be would relieve the taking of criminality, though the claim proved unfounded. But when the taking is without color or claim of right, and is a trespass or larceny, the publicity attending it, is immaterial. No other construction will serve the purposes the statute is designed to accomplish. The fifth instruction requested by the defendant was properly refused.

In all criminal prosecutions, whether the offense charged is statutory, or an offense at common law, whether it be of felony or of misdemeanor', the previous good character of the accused is matter of evidence for him, and may generate a reasonable doubt of guilt entitling him to an acquittal, In an instruction to the jury, the evidence of good character should not be disconnected and dissociated from the other evidence in the cause, which may be so clear and convincing of guilt, as to render of little or no avail the previous good character of the accused ; the jury should be left freo to form their conclusions upon the whole evidence.—Goldsmith v. State, 16 So. Rep. 933, and authorities cited. The fourth charge re*139quested by the defendant, was free from the infirmities which vitiated instructions in reference to good character in numerous cases referred to in Goldsmith’s case, and ought to have been given.

The ‘ ‘legal presumption of innocence is to be regarded by the jury, in every case, as matter of evidence, to the benefit of which the party is entitled.” — 1 Green. Ev. § 34. And as matter of evidence, the presumption attends the accused, until his guilt is by the evidence placed beyond a reasonable doubt.—Coffin v. U. S., 156 U. S. 432, The eighth instruction requested by the defendant was intended to affirm ‘this proposition, and if it had not affirmed that the intent of the defendant must have been to appropriate the corn to his own use, there would have been error in its refusal. The intent to appropriate to one’s own use, is not of necessity the criminating intent of the offense, for intent to deprive the true owner of his property, is as criminating.

For the errors we have pointed out, the judgment must be reversed and the cause remanded.