Yarborough v. State

41 Ala. 405 | Ala. | 1868

JUDGE, J.

On the trial below, the State introduced evidence tending to show, that the property mentioned in the indictment had been stolen in the city of Montgomery, on the night of the 14th of January, 1866; and that subsequently the property was in the possession of the prisoner, and two other persons, named respectively Lovelace and Eleller, in the county of Lowndes ; and that at a time still subsequent, it was in their possession in the county of Pike. The witnesses for the State stated, on cross examination, that when they saw the prisoner in the possession o£ the property as stated, he was a stranger to them, and passed by the name of Stewart; that the next time they saw him, he was in custody, and they recognized him as the same man they had previously seen with the property; and they described his dress, and the manner in which he wore his hair and beard, when they saw him in Lowndes and in Pike. The prisoner introduced evidence in rebuttal, tending to show that, at the time the property was said to be in Ms possession in Lowndes and Pike, he was in the city of Montgomery; and that he did not wear Ms hair or beard, at or about that time, in the manner described by the witnesses.

This state of proof presented the material question of identity as to the prisoner. The record informs us that, after the introduction of the evidence above stated, the court permitted the State to introduce evidence, against the objection of the prisoner, “ that two certain mules, the property of T. H. Watts, had been stolen at the same time in the city of Montgomery; and also proof tending to show that the mules so stolen were in the possession of said defendant, said Lovelace, and said Heller, at the same time they were in possession of said horse and buggy.” Was this evidence properly admitted ? It is stated by high authority, that “ when the evidence is referable to the point in issue, it will not be inadmissible, although it may incidentally apply to another person, or to another thing, not included in the transaction in question, and with regard to whom, or to which, it is inadmissible. Thus, although it is not material in general, and is therefore inadmissible, to inquire into any other stealing of goods than that specified in the indictment; yet, for the purpose of ascertaining the identity of the person, it is often important to show that other goods, which have been upon an adjoining part of the premises, were stolen on the same night, and afterwards found in the possession of the prisoner.—1 Phill. Ev. 169, 7th ed. So, on an indictment for arson, evidence has been admitted to show that property, which had been taken out of the house at the time of the firing, was afterwards discovered in the prisoner’s possession.”—Roscoe’s Cr. Ev. 82-83. The authorities also hold, that evidence of other transactions than the one in question may be received, where the question of intent is' involved, or where it is necessary to show “ guilty knowledge.”—Roscoe’s Cr. Ev. 82-96. See, also, Tharp v. The State, 15 Ala. 749. The evidence objected to by the prisoner, was clearly admissible for the purpose we have stated; and we cannot place the court in error, by making the intendment that it was admitted for any other than the legal purpose.

2. George Heller was offered as a witness for the State, and permitted to testify as such, against the objection of the prisoner as to his competency. The witness had been embraced in the indictment, as a co-defendant, and had been tried, convicted, and sentenced to imprisonment in the penitentiary for a term of years, and had been pardoned by the governor; “ but,” says the bill of exceptions, “ it did not appear that he had been restored by the warrant of pardon, to the rights of citizenship, or any other rights forfeited by his conviction.” Section 2302 of the Code provides, among other things, that “ no objection must be allowed to the competency of a witness, in any legal proceeding, whether examined orally or by deposition, because the witness has been rendered infamous by a conviction for any crime, except perjury or subornation of perjury.” Waiving the question as to whether that portion of the section of the Code above quoted was repealed by the act of the 14th of February, 1867, and waiving the further question, whether the crime of which the witness was convicted renders him, in the eye of the law, so infamous as that, in the language of Chief-Baron Gilbert, “ the credit of his oath is overbalanced by the stain of his iniquity;” still the witness was competent by virtue of his pardon alone. The legal effect of a full pardon is, to remove all disability arising from the conviction — is fully to rehabilitate the party — whether it be so expressed in the pardon or not.—1 Greenleaf's Ev. § 377; 1 Bish. Cr. Law, 762. The court, therefore, did not err in ruling the witness to be competent.

3. Neither can we say there was error in the refusal of the court to charge the jury, “ that in assessing the value of the property, they must assess it according to its value in gold.” The grade of the offense did not, in this case, depend upon the value of the property alleged to be stolen. Revised Code, § 3706.

There is no error in the record, and the judgment is affirmed.