Thrash v. Bennett

57 Ala. 156 | Ala. | 1876

STONE, J.

We propose to consider only the questions raised by the assignments of error.

' There was certainly no error in excluding from the jury evidence that twelve of the persons composing the grand jury at a certain term, were colored men, or freedmen. Such testimony could have shed no legitimate light on any question -raised by this record. The controlling matter of" contest was, whether the cotton belonged to Bennett, the plaintiff, or Thrash, one of the defendants. The tendency of the testimony offered, would have been to multiply the issues unduly, and to confuse the jury in their deliberations. The whole action of the grand jury, first and second, presented questions foreign from the issues being tried, and, if objected to, should have been excluded.—Governor v. Campbell, 17 Ala. 566; 1 Brick. Dig. 809, § 81; Mobile Marine Dock, &c. v. McMillan, 31 Ala. 711; Crews v. Threadgill, 35 Ala. 341.

There is no exception reserved to the affirmative charge-given, which justifies us in considering it.—Gager v. Gordon, 29 Ala. 341.

To authorize the reversal of a cause on account of charges asked and refused, the charge asked must assert a correct legal proposition in view of the evidence before the jury ;■ must not be abstract, ambiguous, or calculated to mislead, and must be true and consistent with the evidence in all its postulates of law and fact. If it be wanting in any one of these particulars, it is the privilege, if not the duty of the court, to refuse it. — 1 Brick. Dig. 338-9, §§ 41, 48, 59, 60, 61, 65; McLemore v. Nuckolls, 37 Ala. 675.

Among the questions raised by the charges asked, is the-legality of what is called, in the record, a search-warrant. The grounds on which such warrant may be issued, and the manner of suing it out, are shown in Revised Code, § 4377, and sections following. Section 4377 declares on what grounds a search-warrant may be issued. An examination of the affidavit and warrant of search will show that they charge no criminal offence, and specify none of the grounds mentioned in the statute. Section 4378 declares that such search-warrant “ can only be issued on probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and place to be searched.” Sections 4379, 4380, declare what preliminary proof shall be made; and section 4381 gives directions for the issue of the warrant. The affidavit and warrant in the present record are so manifestly imperfect, that we deem it unnecessary to specify the imperfections. They are void. Duckworth v. Johnson, 7 Ala. 578; Sullivan v. Robinson, 39 Ala. 613.

Two witnesses examined in this cause testify that Dennis Cochran rented land from Bennett, the plaintiff, and became his tenant. They also testify that Cochran executed a mortgage to Bennett on his crop to be grown, to secure the agreed rent, the hire of a mule, and for advances to be made by Bennett; and that the last two items remained unpaid when the present action was brought. There was no objection or exception to this evidence, and we are not informed whether the mortgage was in writing, or was oral. A mortgage of chattels, however, is good in either form.—Morrow v. Turney, 35 Ala. 131. And a mortgage on a crop to be grown is good; and when produced, the mortgagee is entitled to the possession, and may maintain an action for its recovery.—2 Brick. Dig. 245, §§ 9, 11; Doe, ex dem. v. McLosky, 1 Ala. 708; Knox v. Easton, 38 Ala. 345; Mansony v. U. S. Bank, 4 Ala. 735; Booker v. Jones, 55 Ala. 266.

The first charge asked entirely ignored the question of mortgage, and was rightly refused on that account. True, if only the relation of landlord and tenant had existed, the charge would have asserted a correct legal proposition. But the charge withdrew from the consideration of the jury all the testimony tending to prove a mortgage.

If the word substance, in the second charge, be emphasized, or if it had said, if the jury believed there was no other contract than the one supposed in the charge, then, on a technical criticism, the charge might be pronounced correct, as far as it goes. But it, like the first, ignores the proof of mortgage. Its tendency was to mislead, and the court did not err in refusing it.

The third charge contains a singular repugnancy. Its language is : “ If the jury believe from the evidence that any portion of the cotton belonging to the defendant [Thrash] had been by the owner [Thrash] or by the plaintiff [Bennett] Avilfully mixed with the cotton alleged to have been taken by the defendant,” &e. It is manifest that if the cotton was mixed, and the confusion produced by Thrash, this could not defeat Bennett’s suit. This charge was correctly refused on this ground, if for no other.

In declaring the search-warrant void, we have, in effect, said the fourth charge should not have been given. It was abstract.

Affirmed.