Washington v. State

106 Ala. 58 | Ala. | 1894

COLEMAN, J.

— The defendant was indicted and convicted of grand larceny. A great many exceptions were reserved to the ruling of the court upon the admission and exclusion of evidence introduced or offered in the progress of the trial. In almost every instance the objection seems to have been of a general character, without specifying any particular ground of objection. A general objection is sufficient, when the evidence offered is patently and palpably inadmissible for any purpose. When the evidence offered is not of this character, the court is not bound to cast about for the grounds of the objection. Furthermore, a party can not sit by and hear a question propounded without objection calculated to elicit illegal or irrelevant evidence which maybe favorable to him, and after the question'has been answered, raise an objection to the question, or to the answer, if ir is responsive. Parties will not be allowed to speculate in this way The rule requires that the party appealing must affirmatively show error.

Confessions to be admissible must be voluntary,- and that they were voluntary must appear. This is usually shown by an examination voir dire as to promises and threats, &c. Where, however, the facts and circumstances under which they were made affirmatively show., that there were no improper influences proceeding from the person to whom they were made, or from any other person, or from the surrounding circumstances the confessions are prima facie free and voluntary and are admissible, and the same is true where an inducement involves “only a collateral benefit.” — Hornsby v, The State, 94 Ala. 55, 64; Stone v. The State, 105 Ala. 60.

The confessions testified to by the witnesses who were alleged to have acted as accomplices, and also the conversation testified to by the witness Williamson come within this rule. We are also satisfied from the record that the confessions admitted in evidence, were made before the conversation in the presence of the chief of police, referred to in the cross-examination of the witness Rox Thomas.

We are of opinion that a larceny of coal from the railroad car was shown, and the ownership and possession of the property sufficiently identified and established, to justify the court in refusing the general charge of acquittal.

The court did not err in receiving parol evidence of the contract of employment of defendant in force at the time of the commission of the alleged larceny. The vice-president of the company, J. H. Wilson, testified that the written contract was entered into at a subsequent period. His was all the evidence on the question before the court, at the time it was admitted.

The facts do not tend to show, that the defendant had such possession or control of the car in which the coal was placed, or of the coal, as that a fraudulent conversion and sale of the property, would constitute the offense of statutory embezzlement, and not of larceny. The defendant was employed to haul the coal when needed from the cai’s and deliver it at a certain designated place, and for this purpose had access to it, but had no other possession or control over the cars or coal. According to the theory of the State, with the aid of his accomplices, the defendant sold and delivered coal on his own accoxxnt to private families in the city of Mobile, which was loaded into carts direct from the cars, for this purpose, without the knowledge or consent of the owner. If this was done with a felonious intent, under the facts the offense was larceny.. Giving the entire evidence a fair construction, there was none to authorize a jury to infer that the ownership or possession of the Mobile Light & Railway Company of tlxe cars, axid coal contained therein, was merely constructive ; or that the defendant had such possessioxx of the coal'as the agent of the corporation, so as to change an offense, which at common law was larceny, into that of statutory embezzlement, created and defined in section 3795 of the Criminal Code.

The charges requested by defendant, which asserted bis right to an acquittal, although the jury might believe beyond a reasonable doubt, that he was guilty of embezzlement or some other offense than larceny, were abstract and misleading, and were properly refused.

The fact that a charge was so badly defaced as to render it difficult to tell whether the word "Given” or "Refused” was written thereon, as required by statute and which was allowed to go to the jury, was not reversible error,'especially, where the record shows that the coart read it to the jury, aud stated that the charge was given, and the jury took it with them in their retirement. No other charges aye allowed to go to the jury except those marked "Given." — Acts of 1888-89, p. 90.- It would seem from the case of Tyree v. Parham, 66 Ala. 424, that even had there been error, it was the defendant’s "irremediable misfortune" that he eo.uld not have known of the error, so as to have interposed an objection.

There is no error in the record.

Affirmed.