| Ala. | Apr 22, 1908
The appellant was indicted and convicted, on the charge of grand larceny, for stealing five caddies of chewing tobacco from a car of the Southern Kailway Company. The transfer clerk of said railway company testified that, when he examined the car, the seal was broken and there was no lock on the door; that amongst other freight there were two kinds of tobacco in said car, to wit. “Bed Jay” and “No. 101” tobacco; that said “Ked Jay” was nailed together, by strips, in packages of five boxes each. The witness was permitted, against the objection of the defendant, to testify that he “checked the freight” in said ear, and that it “checked up
While it is true that the burden rests upon the state to prove the corpus delicti, and unless the state has shown, prima facie, that a larceny has been committed, the defendant is not put upon proof, and that the corpus delicti may be proved by circumstantial evidence, and if the evidence adduced affords an inference that a larceny has been committed the question of its sufficiency is for the jury (Smith v. State, 133 Ala. 146, 150 151, 31 South. 806, 91 Am. St. Rep. 21), yet the circumstances must be proven by legal evidence. There was no proof that the waybill contained a list of the goods that were placed in the car at the place of shipment, nor even that the bill of lading had ever been signed by any one. Hence it was error to allow the witness to testify that he checked the goods in the car and found them “short” by comparison with the supposed bill of lading. The facts testified to by the witness Emily Ho-;an — that the defendant, while coming from the direction of the “yard” where the car was (on the night when it is claimed the goods were taken), had in his hand a tobacco box; that he asked if any one had seen him, and told witness not to say anything about it, and he rvould give her a. dollar — are material circumstances which were properly allowed to go to the jury. So, likewise,
The judgment of the court is reversed and the cause remanded.