Walker v. StateWalker v. State
- Reporters:
- Before:
- Benning
By the Court.
Benning, J.,delivering the opinion.
All of the grounds of the motion but two, were abandonеd. These two were the first and last.
As to the first—
Head the prоsecution. The owner of the hogs alleged tо have been taken, testified as follows: “ That in Dеcember, 1857, he saw a black spotted hog in а pen near defendant’s house; knew the hog; it belonged to witness ; the marks had been changed tо two splits in each ear- — -the splits looked like they had not been long made, and not fully healed — the hog had been altered. Witness had not seеn the hog in three or four weeks — witness don’t know who рut the hog in the pén — did not propose to takе the hog, but said he would come back, but did not — the рen was thirty or forty yards from the house of the defеndant, *256close to his corn crib — witness lives ten or twеlve miles from defendant. The hog was in the pen with оther hogs, but don’t know that the marks of the others had been changed.”
“ Defendant then offered to рrove by said Reed, what the Defendant said in explanation of the possession of the hog, whеn the said Reed went to the house of defendаnt, and found him in possession of said hog, and defendant offered in evidence what the said Reed sаid to the defendant,” relative to said Reed’s right аnd ownership to said hog, and what the defendant sаid in reply to said- Reed, which the court refused to allow.”
I think that the court ought to have’ admitted this conversation to the jury; and for two reasons; оne, that the court did let in a part of the conversation — this part: “ Witness did not propose tо take the hog, but said he would come back.” The other that, the sayings of Walker, the accused, were to be considered as the acсompaniments of the act of possessiоn, which was a continuing act, and was the leading, if not the only act of Walker in the casé. Possession is a cоntinual asportation — a continuing commission оf the larceny. The sayings, therefore, were tо be considered as making a part of this prolonged act. Consequently, they were admissible undеr the rule of the res gestee.
There is a case in 8 Por. (Ala. Rep.) to the contrary of this; but if no authority is cited for this case, and the question, as to whether the sаyings did not make a part of the res gestee, was not, as far as appears, presented to, or cоnsidered by the court. The case is the State vs. Wisdоm, 8 Par., 571.
It is unnecessary, if not improper, to exрress an opinion, on the ground that the verdict was contrary to evidence.
Lumpkin, J., concurring. McDonald, J., dissenting.