Ray v. State

126 Ala. 9 | Ala. | 1899

TYBON, J.

The action of the court in refusing.to grant the motion for a new trial is not revisable. The statute allowing appeals from decisions granting or refusing to grant motions for new trials applies only to ■civil cases. — Code, § 131; Bondurant v. State, 125 Ala. 31.

During the progress of the Dial several exceptions were reserved to the rulings of the court upon the admission of evidence against the objections of defendant. The first of these involves the action of the court in permitting Beasonover to testify that he wrote a note addressed to the defendant and delivered it to Taylor, with instructions to carry it to defendant. Whether or not error was committed by the court at the time the testimony was admitted is unnecessary to decide, since if ■error intervened, it was cured by the testimony of Taylor that lie delivered the note at the house of defendant’s mother, and the further statement of Beasonover that within a short time after he delivered the note to Taylor, defendant came to his place of business to see witness about selling him the harness.

The second exception is predicated upon a refusal by the court of a motion to exclude the testimony of witness Beasonover that the defendant “had two sets of harness both of which he took out of a closet in a hack room of said [mother’s] house and offered to sell either of them and I [he] bought the one involved in this prosecution.’’ An objection was interposed to the question which elicited this answer. The motion to exclude this answer was upon the grounds that it was irrelevant, illegal, incompetent and improper. That portion of the answer which made reference to the set of harness charged to have been stolen by the defendant was undoubtedly not irrelevant, illegal, incompetent, or improper. The matter of sale and acquisition of it by Reasonover from the defendant was the important inquiry in the case. The fact of possession and sale of it by the defendant was substantially all the evidence upon which the State relied as connecting him with the commission of the offense for which he was being tried. Indeed his possession and the sale to Reasonover was the only seriously contested point in the case. It was of importance that every fact tending to show the sale, from the beginning of the negotiations, including every step down to its final consummation, should have been in evidence before the jury in order for them to determine properly this pivotal question. tío, too, the fact that the harness was taken from a closet in a back room when offered to be sold, was of probative force. The motion to exclude went to the entire answer, a part of which we have shown was entirely competent. As to what was said about the other set of harness being taken from the closet and offered to be sold by the defendant to the witness at the same time that this one was purchased, it does not appear it was pointed out by an objection so as to separate it from the legal portion of the answer, if the defendant conceived it to be illegal. If it be conceded that reference to it in the answer was improper for any reason, no duty rested upon the court to separate it from the other portion of the statement of the Avitness.—Ala. Mid. R. R. Co. v. Darby, 119 Ala. 531; Harper v. State, 109 Ala. 28; Com. Bank v. King, 107 Ala. 484; Henry v. Hall, 106 Ala. 84. But we do not concede that it was illegal. The conduct of the defendant in dealing Avith it was so inseparably connected Avith and interwoven into the transaction involving the negotiaton, sale and delivery of the set purchased, a reference to it and the set sold could hardly be avoided. Indeed it could not be avoided unless the Avitness only testified to a paid of the transaction and not the Avhole of it. —C. St. L. & P. R. R. Co. v. Spillker, 134 Ind. 393;People v. Vernon, 95 Am. Dec. 57, and note.

It avus entirely competent for the State to- rebut the statement made by the defendant’s witness Calvin Oliver that he had never told Reasonover that the defendant had a set of harness for sale.

No exception was reserved to tlie charge of the court and there was no request by the defendant of the court to instruct the jury upon that phase of the case involving the offense of petit larceny. Indeed there was no room under the evidence for consideration by the jury of that question. The fact is- undisputed that the harness was stolen from the buggy-house of its owner after a breaking and entry. The complaint made in counsel’s brief of the failure of the court to charge upon the offense of petit larceny involved in each of the counts of the indictment, seems to be predicated upon the idea that the defendant’s possession of the harness recently after the burglary and the sale of it by him may be referable to. his receiving the harness, knowing it was stolen and yet unaware of the fact that a burglary had been committed by the person at the time of the larceny. This theory might be plausible if the indictment contained a count charging him with the offense of knowingly receiving; stolen property. But there is no such charge in the indictment, and no matter ho-w strong the proof might have been tending to establish that he received the harness from another, knowing it to have been stolen, he-could not be convicted of that offense under this indictment.

There is no error in the record, and the judgment is.-, affirmed.