White v. State, 68 So. 521

68 So. 521 | Ala. Ct. App. | 1915

Lead Opinion

BROWN, J.

This case is submitted on the motion of the attorney general to dismiss the appeal on the ground that there has been a discontinuance of the appeal. The record shows that the judgment from which this appeal was prosecuted was rendered on tlie 11th. day of April, 1914, and that at the time the sentence was pronounced against the defendant it was entered on the record of the trial court that: “Questions of law having been reserved upon the trial of this case for the consideration of the appellate court, and the defendant having made known his desire to prosecute an appeal from tin* judgment and verdict of the trial court, it is considered and adjudged that the execution of the judgment and sentence herein be suspended.”

The bill of exceptions was presented to the trial judge for his signature on the 6th day of June, 1914, and was signed by him on the 17th day of June, 1914. The case was not docketed in this court on certificate, and the record was not filed here until the 7th day of August, 1914. The first call of the division to which the case belongs, after the appeal was taken, commenced November 9th, bnd on the authority of Campbell v. State, 182 Ala. 18, 62 South. 59, Ex parte Williams, 182 Ala. 34, 62 South. 63, and Cudd v. Reynolds, 186 Ala. 207, 65 South. 41, no prejudice having resulted because of the delay in filing the record, the motion of the attorney general is overruled.

Motion to dismiss appeal overruled.

---

Opinion on the Merits

ON THE MERITS.

The indictment on which the appellant was tried charges grand larceny, and is against appellant and four other persons charged jointly with him. The appellant was granted a severance from the others,' and, the offense, charged being of a class that, may be committed by one person without aid or assistance of others— in other words, the offense being several as well as joint —it was not necessary to the defendant’s conviction,. and no burden rested upon tlie state, to sIioav that those jointly indicted with the defendant on trial participated •in the commission of the crime.—Crawford v. State, 112 Ala. 121 South. 214; Segars v. State, 88 Ala. 144, 7 South. 46; 22 Cyc. 453 (h). In cases Avliere the indictment charges an offense Avhicli is necessarily such that it cannot he committed by one person alone, such as an indictment for conspiracy and like offenses, the rule is different.—Townsend v. State, 137 Ala. 91, 34 South. 382; Elliot v. State, 26 Ala. 78; Thomas v. State, 111 Ala. 54, 20 South. 617; Lindsey v. State, 48 Ala. 169; Brimie v. United States, 200 Fed. 726, 119 C. C. A. 170; McGehee v. State, 58 Ala. 360; State v. McDonald, 1 McCord (S. C.) 532, 10 Am. Dec. 691; Miles v. State, 94 Ala. 106, 11 South. 403; 8 Cyc. 663 (11).

The evidence tending to connect the defendant Avith the offense Avas Avholly circumstantial, and, in the absence of some proof tending to shoAv a confederacy between the defendant on trial, and the others jointly charged Avith him, evidence the only tendency of which aatis to connect the other defendants with the offense was not admissible against him.—McAnally v. State, 74 Ala. 9; Smith v. State, 133 Ala. 77, 31 South. 942; Thomas v. State, 133 Ala. 139, 32 South. 250.

The trial court, in view of these principles, erred in admitting proof of the proximity of the residence of the other defendants to the scene of the alleged crime, and in admitting proof of the finding of a paper in the cotton house with the name of Henry White on it, and in admitting the paper in evidence.

It has been frequently held that a Avitness should not be allowed to state that a certain foot or shoe could or would make a particular track. If a track has any peculiarity by which it may be distinguished from other tracks, the witness can point them out, and if the evidence shows other similar tracks it is for the jury to determine whether they are made by the same person or thing.—Pope v. State, 174 Ala. 76, 57 South. 245; Pope v. State, 181 Ala. 20, 61 South. 263.

A witness who was not present when a track is made should not be allowed to state how it was made or the peculiar walk of the person making it, as this is manifestly a conclusion for the jury to draw. The record shows that these rules were violated in the trial of this case, ánd that the defendant was tried largely on the conclusions of the witnesses. On another trial, unless evidence tending to show a confederacy between the defendant on trial and the other defendants is offered, the evidence as to the character of tracks made by the other defendants should hot he admitted.

To sustain the indictment it was not incumbent upon the state to show that Norris whs sole owner of the property alleged to have been the subject of the larceny, but proof that he was a joint owner with others, or had some special property in the cotton, was sufficient.— Code 1907,§7147; Lacy v. State,(13 Ala.App.) 68 South. 706.

The court did not err in admitting the evidence ténd-ing to show that the defendant had sold his cotton previous to the time of the larceny, or as to what occurred with reference to the sale of a lot of cottton to Cobb, between Cobb and defendant’s wife and her sister-in-law, in the presence of the defendant.

The fact that Henry White was jointly charged with the defendant with the offense for which defendant was on trial was admissible as tending to show his interest or bias.—Phillips v. State, 11 Ala. App. 168, 65 South. 675; Nickerson v. State, 6 Ala. App. 27, 60 South. 446; Livingston v. State, 7 Ala. App. 49, 61 South. 54; Rivers v. State, 97 Ala. 72, 12 South. 434; Underhill on Crim. Ev. § 248; 7 Mayf. Dig. 970.

For the errors above pointed out, the judgment of the circuit court must be reverséd.

Reversed and remanded.