Walker v. State, 97 Ala. 85

Walker v. State

97 Ala. 85 | Ala. | 1892

STONE, C. J.

— -The indictment in this case contains all of substance that is set forth in the Code form for burglary, and is consequently sufficient, if the charge of larceny had been omitted. Eorm 20, Code of 1886, Vol. 2, p. 268. It avers that the breaking and entering were with the intent to steal. In this, it differs from, and is fuller than the third count of the indictment, which was considered and passed upon by this court in Bell & Murray v. State, 48 Ala. 684, 694. After averring in the case before us, all the ingredients of burglary, the indictment proceeded'farther, and charged that defendant, after burglariously entering .the house, “feloniously took and carried away from said storehouse”, certain moneys and articles of merchandise. It is not error to join these two offenses in one and the same indictment, or, as was done in this case, to charge that the “intent to steal” was carried into execution. — 2 Archb. Crim. Pr. & Pl. (Pomeroy’s Ed. 1114; Clark’s Man. §§ 878, 879; Hild v. State, 67 Ala. 39. The Circuit Court did not err in overruling the demurrer to the indictment.

The second objection urged upon our consideration, brings up the ruling of the Circuit Court in permitting the witness Abe Muller to testify against the defendant. The precise objection is, that he had not sufficient intellect to authorize his testimony to be heard. In the case of Allen v. State, 60 Ala. 19, we declared a somewhat liberal rule on this subject. In this we but followed the tendencies of modern judicial determination — namely, not to exclude a witness on account of mental incapacity to testify, if he have sufficient capacity to understand an oath, and to narrate the transaction in what appears to be an intelligent, rational manner. 1 Wharton’s Law of Evidence, § 403; 1 Green! Ev., § 365; “A man may have many delusions, and yet be capable of narrating facts truly; and, in any view, the existence of such *87delusions on his part, at the time of trial, goes to his credit and not to his competency.” "We hold this - question was properly left to the jury.

We deem it scarcely necessary to notice the other questions. There was certainly some testimony tending to identify the shirt, as having been burglariously stolen from the Morris brothers, and that its possession had been traced to the defendant. There was also testimony tending to show that the vest that had been picked up, had been previously worn by defendant. The place at which the vest was picked up, as well as the possession and identity of the shirt, if the witnesses were not mistaken, were proper circumstances for the jury to weigh in considering the guilt or innocence of the accused. Manifestly, there was testimony which, if believed, tended to prove defendant’s guilt, and the court did not err in refusing to give the general charge, nor in overruling the motion for a new trial.

Affirmed.