72 Ala. 195 | Ala. | 1882
Section 4800 of the Code of 1876, as amended by the act of December 4,1878, provides, that “when any property, upon or in relation to which the offense was committed, belongs to several partners or owners, it is sufficient to allege the ownership to be in any one or more of such partners or owners.” — Acts 1878-79, p. 46. The original statute had reference only to personal property, and not real.—Harris v. The State, 60 Ala. 50. The manifest purpose of the amendment is, to extend its operation so as to embrace property of all kinds, whether real, personal, or mixed. It clearty abrogates-
2. Under the issue of misnomer, interposed by the defendant, it was competent to prove that he had been arraigned and tried in the Mayor’s Court of the city of Huntsville by the name of Dixie White. This, if true, was an admission by him of sucli name, in the absence of objection to it, and tended to prove that he was as well known by that name, as by the name of Dixie Wyche..
3. The court below very clearly did not err in excluding the evidence offered by defendant, to the effect that “negroes, after the war, took their surnames from their former owners or masters, and that negro children were called by the name of their mother’s former master or owner.” This testimony was too uncertain, indefinite, and remote, to come within that class of evidentiary facts regarded as relevant. It had no legitimate tendency to prove the same fact to be true in the particular case of the defendant, especially when as to him it was controverted as the principal issue in the case. It is entirely outside of the influence of the principle permitting evidence of custom or usage. 1 Greenl. Ev. §§ 292 et seq.; 2 vFhart. Ev. §§ 958 et seq.
4. The proposition can not be doubted, that, if the jury entertain a reasonable doubt as to the truth or falsity of any material fact, constituting a part of the testimony in a criminal case,, the defendant is entitled to the benefit of such doubt, however small may be its influence. The first charge asked by the defendant did not, however, fall within the purview of this principle. It erroneously assumed, that the witnesses Hamlin and Miller conflicted in their testimony as to a material fact. They both stated, that the defendant had possession of the watch alleged to have been stolen; and the only conflict was as to his having left it with the witness Miller, and as to the latter’s exertions, 'to sell it; which was a collateral matter entirely immaterial, and in no wise affecting the defendant’s guilt or innocence of the crime charged in the indictment. The charge in question is, also, objectionable for ambiguity, and, for this reason, was properly refused.
5. There is no rule of law which requires, in cases of burglary, or larceny, based on circumstantial evidence, that the y>er-son, who last had innocent possession of the stolen property, must be examined by the State, and that the failure to examine
6. It is not every or any possession of stolen goods by a party, which will authorize the inference of his complicity in the crime of larceny or burglary; nor, in fact, every such unex-plcdned possession, although it pray be exclusive, as opposed to the idea of a joint possession with others. Another element is necessary in order to constitute a guilty possession. It must be recent, or soon after the commission of the offense to which it has reference.—Henderson v. The State, 70 Ala. 23; 1 Greenl. Ev. § 34; Whart. Or. Ev. § 758; Clark’s Or. Dig. §§ 97, 145, 635; Murray & Bell's case, 48 Ala. 157, 675; Crawford’s case, 44 Ala. 45.
What is meant by “ recent,” is incapable of exact or precise definition, and tlie term has been said to vary, “within a certain range, with the conditions of each particular case.” Whart. Or. Ev. § 759. There are cases, no doubt, so clear in nature, and undisputed in facts, as that the court could pronounce the possession recent, as matter of law; but the question is usually one of fact for the determination of the jury. Re this as it may, we are of opinion that the charge given by the court on. this subject was erroneous, because it excluded from the consideration of the jury a necessary element of a guilty possession — namely, that it should be recent; and its vice consisted in assuming that any other kind of possession afforded a just inference of the defendant’s complicity in the crime with which he was charged. It is upon the same principle that charges ignoring the question of venue, and withdrawing it from the consideration of the jury, have always been pronounced erroneous.—Gooden v. The State, 55 Ala. 178; Bain v. The State, 61 Ala. 75. The same is true of a charge ignoring or withdrawing the question of intent to defraud,.in an indictment for forgery (Gooden’s case, supra); or of any material fact which is a necessary constituent of the prisoner’s guilt. Corbett v. The State, 31 Ala. 330; McAdory’s case, 59 Ala. 92.
The ruling made in Maynard’s case, 46 Ala. 85, is not in harmony with these views; and to this extent, the authority of that case must be overruled.
There is nothing in the other exceptions. The judgment is reversed, and the cause remanded for a new trial. In the meanwhile, the prisoner will be retained in custody, until discharged by due course of law.
