Robinson v. State

70 So. 960 | Ala. Ct. App. | 1916

BROWN, J.

(1) Nonexpert witnesses shown to be familiar with the property to be valued are competent to express an opinion as to its value.—Hodge v. Rambo, 155 Ala. 176, 45 South. 678; Southern Ry. Co. v. Morris, Adm’r, 143 Ala. 631, 42 South. 17; Western Ry. Co. v. Lazarus, 88 Ala. 456, 6 South. 877. The witness Lawson testified that the cow belonged to him, that he milked her on Wednesday morning after Christmas, 1914, and that he missed her after that time, and was competent to testify as to her value; and the objection to the testimony of this witness was properly overruled.

The witness Rambo was not shown to be in possession of the cow at the “Morass place,” and anything he may have said about the cow was hearsay and inadmissible.

The evidence shows without dispute that R. S. McWhorter, Jr., took the cow under a mortgage executed by Lawson, the alleged owner; but as to whether the cow was covered by the mortgage, there was a dispute in the evidence. After R. S. McWhorter, Jr., had taken possession of the cow under the mortgage, she was turned in the pasture or lot at the “Morass place,” then in the possession of McWhorter, Sr., who, it seems, not knowing that the cow had been turned into the pasture by McWhorter, Jr., but assuming that it was a cow that he purchased from Glover, directed the defendant, who was in his employ, to deliver the cow to Mr. Tillery at Hayneville to be shipped; and the only evidence against the defendant is that he carried the cow to Hayneville and turned her over to Mr. Tillery, and after-wards, when Garrett, the deputy sheriff, and Harrell went to arrest him, he got on his mare and galloped off. The evidence further shows that he was afterward arrested by the sheriff in the courthouse, and gave as his reason for running away from the deputy that Mr. McWhorter, his employer, was away from home, and he did not want to be arrested until his return.

(2, 3) There was no dispute in the evidence that McWhorter, Sr., sent the cow to Tillery through mistake as to her identity, and, over the seasonable objection of the defendant, the court allowed the state to show a conversation by the witness McWhorter, Sr., and Varner as to another cow purchased by McWhorter from one Glover. This evidence was wholly immaterial to any issue in the case. Such conversation could not be made the basis of impeaching the witness. Furthermore, no effort was made to contradict the testimony of the witness as to this conversation. This was purely hearsay testimony, and should not have been admitted.

(4) Unless some testimony is offered on another trial, tending to show a felonious taking by the defendant, he should not be convicted.

Let the judgment be reversed, and the cause remanded.

Reversed and remanded.