Austin v. State

• Decision Date: 16 April 1940
• Docket Number: 4 Div. 520.
• Citation: 195 So. 566,29 Ala.App. 327
• Parties: AUSTIN v. STATE.
• Court: Alabama Court of Appeals

195 So. 566

29 Ala.App. 327

AUSTIN v. STATE.

4 Div. 520.

Court of Appeals of Alabama

April 16, 1940

Appeal from Circuit Court, Coffee County, Enterprise Division; W. L Parks, Judge.

Rex Austin was convicted of petit larceny, and he appeals.

Reversed and remanded.

E. C Boswell, of Geneva, for appellant.

Thos S. Lawson, Atty. Gen., and Willard C. McCall, Asst. Atty Gen., for the State.

RICE Judge.

Regardless of what the law once was, it seems now definitely settled that a mere "gleam," "glimmer," "spark," "the least particle," the "smallest trace"--"a scintilla"--(all, of evidence), is not sufficient to require the guilt vel non of one accused of crime (and on trial) to be submitted to the jury--in the face of the presumption of innocence attending such a one's plea of not guilty. Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Code 1923, Sec. 7318. But that before the question of such an one's guilt shall be submitted to the jury for its decision "there must be substantial evidence tending to prove all the elements of the charge." 228 Ala. 1, 152 So. 264.

As we read the decision in the Ex parte Grimmett case, supra, it operates to render the rules for granting a motion for a new trial in a criminal case on the ground the verdict of the jury is opposed to the great weight of the evidence, and for granting the defendant's request to give to the jury the general affirmative charge to find in his favor, to be substantially one and the same. Either said motion, or said request, should be granted unless there is "substantial evidence tending to prove all the elements of the charge."

Here we propose to apply said rule to appellant's duly requested general affirmative charge, which was refused to him, below.

One John A. Stokes, who lived in Geneva County, owned some twenty-eight bags (hull sacks) of peanuts which he had stored in a storehouse in Coffee County belonging to one Cheshire. The house had been used (presumably by Stokes) generally for storing "peanuts and hay and things of that sort." And Stokes testified that "there was peanuts, velvet beans, peanut hay and dry peas in there which had been stored in there about two months and a half"--and the assumption is, these things belonged to Stokes.

Mr. Stokes testified "he lost eight sacks of those peanuts;" that he "didn't give anybody authority to move those peanuts;" and the value of those he "lost" was proved, hypothetically, to be more than $25. He testified he "missed them about the 10th of February."

Appellant, an eighteen year old boy, with two others, was indicted for the theft of two sacks of the above peanuts, of the value of $6.

There was a joint trial; all three were convicted of the offense of petit larceny; and the appeal of only this...