49 So. 803 | Ala. | 1909
The appellant was indicted for receiving stolen goods, tbe property of tbe Birmingham Fireworks Company. Ordinarily evidence of any other offense than that specifically charged is inadmissible in criminal cases. But, guilty knowledge being of tbe gist, of tbe offense charged against tbe appellant, evidence that on other occasions about tbe same time she bad received other articles from the same thief, knowing that they were stolen, is relevant to show a scienter in respect to tbe property laid in tbe indictment. — Gassenheimer v. State 52 Ala. 313; Whar. Cr. Ev. § 44; Jones, Ev. § 143.
A witness for tbe prosecution, having testified to finding tbe goods charged to have been received by tbe defendant in a store kept by the defendant and her husband, was allowed, over tbe defendant’s objection, to testify that at tbe same time be found other property in tbe store which be recognized as stolen property. This was tbe statement of a fact as upon tbe knowledge of tbe witness, and in connection with tbe evidence subsequently introduced tending to show a receipt of tbe other goods with knowledge that they, too, bad been stolen, was relevant and material to the issue of defendant’s guilt under the-indictment.
So, toó, the witness’ statement that “we missed some fireworks from tbe company’s store” must be taken as tbe statement of a fact within tbe knowledge of tbe witness. Tbe witness was then asked if tbe other stolen goods bad the mark or brand of tbe Huston Biscuit Company upon them. This question was objected to on tbe ground that it called for secondary evidence. Witnesses have been permitted to give parol evidence of inscriptions on
On cross-examination the witness testified that he had not personal knowledge of the larceny of the goods which he had found at the store. Thereupon the defendant, to quote the bill of exceptions, “moved the court to exclude from the jury the other stolen property in the store of defendant that belonged to the Huston Biscuit Company,” on the ground that it was hearsay. This motion the court overruled, and the defendant duly excepted. That part, at least, of the testimony which had reference to the marks or brands upon the goods, ivas not hearsay. The motion was addressed to all that testimony of the witness which related to the Huston Biscuit Company’s property. It ivas incumbent upon the defendant, when invoking the action of the court by her motion, to separate the objectionable from the unobjectionable. As the motion was framed, there was no error in overruling it.
A number of exceptions noted in the record relate to questions and answers which-were intended, and legitimately tended, to show that the property of the Huston Biscuit Company, found in the possession of the defendant, had been stolen. There was evidence in support of the state’s theory that George Beid was in the common employment- of the Birmingham Fireworks Company and the Huston Biscuit Company as a drayman, and had guilty agency in the larceny and delivery to the defendant of those goods of the two companies found in the defendant’s possession. It being competent, as we have seen, for the prosecution to show guilty possession of goods which had been stolen, other than those laid in the indictment, it is hardly more than a repetition of idea
The witness Bodelcer was permitted to testify that the goods found at the defendant’s store had been identified as stolen property. It was made to appear affirmatively that the witness was testifying to the fact of identification by other persons. Clearly this was hearsay, and should have been excluded. It was proper for this witness to testify that the defendant had offered to pay him if he would not make trouble for her. The witness was a police officer, and it was for the jury to say whether the offer should be taken as an effort to cover up a crime or proceeded from innocent motives. There was manifest error in requiring the witness Augusta Piano to answer questions in regard to other goods found in the store, as to which there was no evidence that they had been stolen.
The statement made by the solicitor in his argument to the jury should have been excluded on the defendant’s motion. The statement was outside the pale of legitimate argument. “In order that a statement may come within the rule which prescribes the limits of fair discussion, the statement must be made as of fact. The fact stated must not be unsupported by any evidence, must be pertinent to the issue, or its natural tendency must be to influence the finding of the jury.” — Childress v. State, 86 Ala. 77, 5 South. 775; Cross v. State, 68 Ala. 476. The officers and agents of the Huston Biscuit Company had testified as witnesses for the state, and, indeed, most of the testimony
Charges which we have marked 1 and 2, given at the request of the state, authorized the jury to base a conclusion that the defendant had guilty knowledge that the goods were stolen upon a mere belief; whereas, the law requires belief beyond a reasonable doubt of every essential element of the offense charged, and such belief must be founded upon the evidence. The charge approved in Collins v. State, 33 Ala. 434, 73 Am. Dec. 426, was predicated upon a finding of fact, not a mere belief. The charges were error.
Charge 1, requested by the defendant, stated a correct proposition of law, but was calculated to mislead the jury in the case at bar to the conclusion that they might not draw inference touching the guilt of the accused from the unexplained possession of property recently stolen, when taken in connection with th _ evidence. It was the province of the jury to draw inferences from the facts in evidence. The charge was properly refused. — Adams v. State, 52 Ala. 379. We will not be understood as asserting that the jury would be authorized to draw an inference of guilt under an indictment charging the receiving, etc., of stolen goods, from the single fact of unexplained possession. That question is not raised by the charge in question. Rapalje’s Larceny and Kindred Offenses, § 325, and note.
The general affirmative charge for the defendant was .also properly refused.
Reversed and remanded.
