Wade v. State, 72 So. 269

Wade v. State

72 So. 269 | Ala. Ct. App. | 1916

Lead Opinion

PELHAM, P. J.

Defendants were tried under an indictment charging burglary, grand larceny, and receiving or concealing stolen property of a value in excess of $25.

(1) There was no direct proof that the property named in the indictment had ever been in the possession of the alleged owner. In the absence of any legal proof showing or tending to show this fact, the defendants were entitled to the affirmative charge as to the counts charging larceny and receiving or concealing stolen property.—Smith v. State, 133 Ala. 145, 151, 31 South. 806, 91 Am. St. Rep. 21.

(2) The defendants requested several charges, each attempting to express this principle. Each of these charges in substance declared that, if the jury believed the evidence, they must find the defendant not guilty under the named count of the indictment. The court was not in error in refusing these. Each is *132misleading, and has heretofore been condemned.—Moss v. State, 146 Ala. 686, 40 South. 340; Dorsey v. State, 134 Ala. 553, 556, 33 South. 350; Angle v. State, 10 Ala. App. 232, 234, 64 South. 646.

(3) There was no error in the action of the trial court in permitting the state to show the condition of the box, from which it was claimed the property was stolen. This evidence was properly admitted, as, if true, it might, when coupled with other competent evidence, have afforded an inference of the larceny of the goods in question.

(4) The bill of exceptions does not recite when the exceptions to the court’s oral charge were reserved. It will therefore be presumed on appeal that the exceptions were not reserved within the proper time, and may not now be considered. When exceptions are reserved to the court’s oral charge, it must be made to appear that the exceptions were duly reserved before the jury retired, to justify a holding putting the lower court in error.—C. of Ga. Ry. Co. v. Courson, 186 Ala. 155, 65 South. 179, 180; Donahoo v. Matthews & Tarrant, 1 Ala. App. 446, 55 South. 270.

Affirmed.

Rehearing

ON APPLICATION FOR REHEARING.

(5, 6) The appellant insists, upon this application, that it sufficiently appears from the recitals in the bill of exceptions in relation to the exceptions reserved to portions of the court’s oral charge by the defendant, that they were taken and reserved during the trial and before the jury retired. It is shown by the bill of exceptions that the exceptions to these excerpts of the oral charges were “duly” reserved, and that the court, after the exceptions were reserved, made certain changes in its oral charge to the jury-and continued to charge the jury on these and other propositions, and that the exceptions were duly reserved as the charge was being given; and necessarily before its conclusion. Whether the objections were made and exceptions properly taken before the jury retired must be determined from a reasonable construction of the bill of exceptions (Edgar v. State, 183 Ala. 36, 62 South. 800), and we think that, according to the record in this case such construction, it is made to affirmatively appear that the exceptions were properly reserved to require review of that question. The excerpt from the oral charge of the court to *133which an exception was reserved, which, as set out in the record, is in the following language: “I didn’t tell them that. I simply-told the jury you must be persuaded beyond reasonable doubt that these are the trousers that came out of Pittman’s box. And that if there is evidence here to satisfy you beyond a reasonable doubt this is true, it makes no difference who has testified or who has not testified in the case,” is clearly, we think, when taken in connection with the evidence introduced by the 'defendants in their behalf, an invasion of the province of the jury, and is a charge upon the effect of the testimony in violation of section 5362 of the Code of 1907. See authorities collated as a footnote to that section.

Judgment of affirmance heretofore entered is ordered set aside, and a judgment of reversal remanding the cause is entered for the error discussed.

Affirmance set aside; reversed and remanded.