| Ala. Ct. App. | Jun 1, 1911
1. Whenever the identity of a thing is in issue, a witness who speaks from personal knowledge and observation may testify to- his opinion on the subject. A party may be able to positively identify a thing, and at the same time not be able to state all the facts on which his opinion is based. When not able to positively identify the object, he may, nevertheless, state, if he is-acquainted with the object, his best opinion, in the absence of proof, by cross-examination or otherwise, that he is ignorant of the matter about which he testifies or speaks merely at random.—Turner v. McFee, 61 Ala. 468" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/turner-v-mcfee-6510211?utm_source=webapp" opinion_id="6510211">61 Ala. 468.
The more intimate the acquaintance of the witness with the object and the more positive his opinion as to its identity, the more valuable his testimony, provided the witness is credible and his evidence is unbiased. “On the question of the identity of persons or things, a witness may be allowed to speak as to his opinion or belief. He ma.y be certain and free from doubt, or he may not be fully assured as to the correctness of his conclusions. He may state the result of his examination of the object sought to be identified, and it is proper for him to so express himself as to inform the jury whether his statement is made confidently or doubtingly. The testimony is not to be excluded because the witness does not speak with positive assurance.”—Mitchell v. State, 94 Ala. 68" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/mitchell-v-state-6514499?utm_source=webapp" opinion_id="6514499">94 Ala. 68, 10 South. 518.
When a witness has testified to the identity of a thing the identity of which must be established by the evidence, the party against whom such evidence is offered may cross-examine the witness as to the extent of his knowledge or observation of the thing for the purpose
The solicitor on the trial of this cause in the court below therefore committed no impropriety in asking the witness Fowlkes, on direct exaxnination, the question: “Are you sure it was the same tire that you lost?” And the court properly permitted the witness to answer the question affirmatively.
2. The evidence, if believed, established in this case the corpus delicti. The only question for the jury, if they believed the evidence, was whether they believed from the evidence beyond a reasonable doubt that the defendant was connected with the larceny of the tire. There was some evidence in the case from which the jury had the right to draw the inference that the tire alleged to have been stolen was in the possession of the defendant shortly after it was stolen and that he was trying to sell it.
The unexplained possession by a person of goods recently stolen does not as matter of law in this state raise a presumption of guilt, but, where the evidence beyond a reasonable doubt establishes the fact of the laxweny, the unexplained recent possession by the defendant of the stolen goods is a fact from which the jury may legally draw the conclusion that the person in whose possession they áre found is the thief. Proof of a. clxarge in' crixiiinal cases "involves the proof of two distinct propositions', proof' of the cox’pus delicti and of
As the evidence in this case, if believed, established the corpus delicti, and there was some evidence tending to sIioav that the defendant was in the unexplained possession of the tire shortly after it was stolen, there was some evidence in the case upon which the jury had the right to base a verdict of guilty. In cases triable by jury questions of laAV are for the court; questions of fact for the jury.
The jury must take the law from the court. They take the facts from the witnesses, and it is not for the courts, in this state, to give instructions as to the weight or the sufficiency of the evidence. Whether there is any evidence is for the court; how much, if there is any evidence, is for the jury.—6 Mayfield’s Dig. p. 340, § 103.
The court did not err in refusing to give the general charge requested by the defendant.
3. A jury may, upon circumstantial evidence alone, convict of crime.
It is, as stated in one of the briefs in this case, the law of the state that a juror is incompetent who will not convict upon circumstantial evidence.—Mitchell v. State, 114 Ala. 1" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/mitchell-v-state-6517041?utm_source=webapp" opinion_id="6517041">114 Ala. 1, 22 South. 71. It follows, therefore, that the court committed no error in refusing to give charge No. 2 requested by the defendant. In Alabama a jury can convict a defendant on circumstances merely, and, as this charge asserts the converse of that proposition, it is bad, although the other proposition stated in the charge embodies a correct legal principle applied to the facts of the case.
We find no error in the record, and the judgment of the court below is affirmed.
Affirmed.
The appellant insists that the court below committed error in refusing to allow him to show that the value of the stolen tire was less than its market value because the market value was a value fixed by a monopoly, a trust, or a contract in restraint of trade. The appellant does not undertake to say that the tire in evidence could be bought in the market for less than $35, but he proposed to prove that its market value was fixed at $35 by a trust controlling the product at a much higher value than its reasonable value and that, but for the trust, it could be bought, in the market, for less than $25. The tire in evidence, as we understand appellant, sells at retail at $35 in every market of the United States, and can be bought in no market in the United States at a less figure than $35, and this is due to the fact that a monopoly controls the manufacture and sale of the article. But for this monopoly in its manufacture and sale the tire could be sold, and would be sold, at less than $25 in the market. This evidence would be of value, we presume, to the government of the United States upon a bill to dissolve the trust of which appellant complains, but could serve no legal purpose on the defendant’s trial. The true meaning of a word is to be determined by the context, and this is peculiarly true of the word “value.”
When applied, without qualification, to property, the word “value” means the price which it will command in the market.-— Fox v. Phelps, 17 Wend. (N. Y.) 393. “The Avord 'value,’ as used with reference to the value of property stolen by one on trial for the offense, signifies the sum for Avhich the like goods are at the time commonly bought and sold in the market.”—8 Words and Phrases, 7276. Under this rule, the proper standard
The excerpt copied in Words and Phrases from Lawrence v. City of Boston, 119 Mass. 126" court="Mass." date_filed="1875-11-10" href="https://app.midpage.ai/document/lawrence-v-city-of-boston-6418306?utm_source=webapp" opinion_id="6418306">119 Mass. 126, was not taken from the opinion of the Supreme Judicial Court of Massachusetts, but is a portion of the charge of the judge of the trial court to the jury which tried the case. This portion of the charge of the judge of the trial court was not excepted to, but was, as applicable to the facts of that case, a correct statement of the law. In that case Lawrence was undertaking to collect from the city of Boston more than the market value of a lease which he held on a building which stood on land which was taken by the city to widen a street. During the progress of the trial Lawrence requested the court to charge the jury that, “in determining the value of the lease, the jury are to consider, among other things, the. amounts which persons desiring to take the lease would be willing to pay for the same, not excluding from such consideration the amounts which the petitioners themselves would give.” The judge stated that he had no objection to giving this instruction, with this modification: “If the petitioners are in the market for the lease, but if they, rather than be turned out, would give more than anybody else, that is not the market value of the lease.” The counsel contended that the charge as asked should have been given and excepted to the
For the above reasons, the application for rehearing is overruled.'
Application overruled.