Smith v. State

103 Ala. 40 | Ala. | 1893

HARALSON, J.

1. There was no error in the refusal of the court to allow the defendant, on the cross-examination of the witness, Parks, for the State, to ask the question, if Lillie Elbert, the woman with whom the owner of the necklace alleged to have been stolen boarded, did not keep a bawdy house. Such evidence was not admissible for any purpose. Nor was it at all proper for the defendant to ask the witness, Ula Roberts, if she had not made the same statements on the preliminary trial that she was making on this trial.

2. The defendant proposed to prove by Molly Bell that she had seen the defendant at the house of witness, with a necklace in her hand ; that it had sand in the links, and that defendant stated, she had found said necklace ; that she had it in her hand and showed it to witness ; and by Ula Roberts, that she saw defendant with a necklace ; that it had sand in it, which defendant washed off in the water in the tub where witness was washing. These declarations of the defendant while in possession of the property, at the time and under the circumstances shown, were admissible as explanatory of her possession. — 1 Brick. Dig., 843, § 558 ; Allen v. The State, 73 Ala. 23; Crawford v. The State, 44 Ala. 45 ; Henderson v. The State, 70 Ala. 23. There is nothing in Henderson1 s Case, last cited, when properly understood, in conflict with the ruling in this case.

3. The portions of the general charge of the court, excepted to by the defendant, were free from error.

4. Nor was there any error in refusing to give either of the charges requested by the defendant. The 4th sought to emphasize and call attention to the written charges requested by her, over the other charges given ; the 2d, 6th and 7lh ignore the intent of the defendant,at the time of the finding, in taking and keeping the necklace, and the 6th is subject to the further objection, that it does not postulate defendant’s refusal to turn over to Parks, as agent, the necklace in her possession, on the ground that he was not the agent of the owner for it’s recovery. — Griggs v. The State, 58 Ala. 425; Weaver v. The State, 77 Ala. 26.

For the error in the exclusion of the evidence, as above noted, the judgment of the court below must be reversed.

Reversed and remanded.