Welch v. State, 46 So. 856

Welch v. State

46 So. 856 | Ala. | 1908

SIMPSON, J.

The indictment under which the defendant was convicted was demurred to, on the ground that it charged both burglary, a felony, and petit larceny, a misdemeanor. The demurrer was properly overruled. The indictment charges burglary. While it was not necessary to have alleged the actual taking and carrying away of the goods, yet, when alleged, as in this indictment, in connection with defendant’s “having so broken and entered feloniously,” it does not constitute a separate charge of larceny, but merely alleges that the intent to steal was carried into effect. — Walker v. State, 97 Ala. 85, 12 South. 83; Barber v. State, 78 Ala. 19; Snow v. State, 54 Ala. 138; Wolf v. State, 49 Ala. 359; Bailey v. State, 116 Ala. 437, 22 South. 918; Adams v. State, 55 Ala. 143, 144.

There was no error in permitting the question to the witness Bell, “Was your attention called to anything?” and his answer thereto, “The officers called my attention to two quarts of whisky sitting on the billiard table, which was the same brand as the whisky in my place.” The witness testified of his own knowledge to the facts that the whisky was sitting on the billiard table and that it was the same brand- as the whisky in his place. It matters not who called his attention to it. The question was merely to direct his mind to the subject of inquiry.

*117The witness Laborde,-having testified that he found that a glass “about eight by ten” was broken out, was asked, “How large was the glass that was broken?” and replied, “Big enough for a man to go through.” This answer was objected to, and a motion made to exclude it, because it stated a mere conclusion of the witness. There was no error in overruling the motion to exclude this testimony. It was a mere shorthand rendering of the facts. — Mobile Light & R. R. Co. v. Walch, 146 Ala. 295, 305, 40 South. 560. Besides, it was not a matter for expert opinion, but was merely a matter open to the observation of any one; and the witness, having stated the size of the glass that was broken out, could properly be allowed, to state whether it was large enough for a man to go through. For the same reason, it was proper to allow the witness Manning to state that the defendant could come through from the saloon to the restaurant. This was but another expression for the statement that the passageway was open. These expressions were statements of a physical fact, or a collective fact, open to the observation of any one. A witness could come nearer telling, by the eye, whether a hole was large enough for a man to go through than exactly how many inches long and wide the hole was.— Kroell v. State, 139 Ala. 1, 13, 36 South. 1025; Stevens v. State, 138 Ala. 71, 81, 35 South 122; Rollings v. State, 136 Ala. 126, 128, 34 South. 349; Mayberry v. State, 107 Ala. 64, 67, 18 South. 219; McVay v. State, 100. Ala. 110, 113-114, 14 South. 862.

The court erred in allowing the witness Manning to testify that “Laborde pointed out this whisky to me as the whisky the defendant had had in his hand.” This was hearsay testimony. The fact that defendant had had the whisky in his hand could not be proved in that way.

*118The remarks made by the judge and solicitor to a jury in another case were not the proper subject of exception in this case. It is not shown that the two cases had any relation to each other, or that the jurors in this case knew anything about the other case. — Landthrift v. State, 140 Ala. 114, 37 South. 287.

In the matter of limiting counsel as to time in the argument of the case, while that is a matter that is left largely to the discretion of the trial court, yet if it is apparent that such discretion is abused, so that the defendant is deprived of the rights which the Constitution guarantees to him this court will reverse the case. In the present case, the facts being few and simple, and the principles of law plain and familiar, and the case not having been argued by the state at all, we cannot say that the defendant was denied the right of a proper presentation of his case by his counsel having been allowed only 16 minutes for argument. — Yeldell v. State, 100 Ala. 26, 28, 29, 14 South. 570, 46 Am. St. Rep. 20.

Charge 1 requested by the defendant was properly refused, as it omitted to predicate a consideration of all the evidence. — Hurd v. State, 94 Ala. 100, 10 South. 528; Liner v. State, 124 Ala. 1, 7, 27 South. 438.

Prom what has been hereinbefore said the indictment did not include an accusation of the offense of petit larceny. Therefore the court erred in refusing to give charge 2.

There was no error in the refusal to give the general charge in favor of the defendant.

The indictment in this case being for burglary, charge 6, requested by the defendant, should have been given.

The motion in arrest of judgment, being’ shown only by the bill of exceptions, cannot be considered. — Hampton v. State, 133 Ala. 180, 32 South. 230.

*119The judgment of the court is reversed, and the cause remanded.

Tyson, C. J., and Haralson and Denson, J.J., concur