Barney v. State

• Decision Date: 18 January 1912
• Citation: 5 Ala.App. 302,57 So. 598
• Parties: BARNEY v. STATE.
• Court: Alabama Court of Appeals

57 So. 598

5 Ala.App. 302

BARNEY v. STATE.

Court of Appeals of Alabama

January 18, 1912

Appeal from Clay County Court; E. J. Garrison, Judge.

Len Barney was convicted of larceny, and he appeals. Affirmed.

It appears from the facts that on a Sunday morning in October 1910, the defendant was working as a driver in the livery stable of J. B. Miller, and drove Mr. Kitchens from Ashland to Lineville; that Mr. Kitchens handed the overcoat to the negro upon his arrival at Lineville, with the request that he carry it to Kitchens' home in Ashland; that he agreed to do so, took the coat but did not deliver it; and that Kitchens had not seen the coat since that time. The evidence for defendant tended to show the same state of facts, and further, that the defendant took the coat back to Miller's livery stable, and hung it up in the office with directions to the office man to deliver it to Mr. Kitchens and that he had not seen it since. In his remarks to the jury, the defendant's attorney said: "Gentlemen of the jury, the defendant in this case could not be guilty as charged. It would only be a civil action, and Mr. Kitchens could sue the defendant and thus get the value of the coat." In his closing argument to the jury, the solicitor said: "Now, as to the contention that this ought to be a civil suit, as defendant's attorney argued I do not agree with him, and I don't believe one member of this jury believes Mr. Kitchens could ever get a penny by a civil suit, even if he sued till he is gray."

O. B. Cornelius, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

The prosecution in this case was commenced more than 60 days after the commission of the alleged offense. The affidavit was made before a justice of the peace, and as section 7348 of the Code provides that prosecutions before a justice of the peace for offenses within his jurisdiction, unless otherwise provided, must be commenced within 60 days after the commission of the offense, the justice made the warrant returnable to the county court of Clay county. In making the warrant returnable to the county court of Clay county, the justice of the peace complied with the law. Acts 1898-99, p 186; Smith v. State, 165 Ala. 122, 51 So. 602.

1. The facts in the present case are, in so far as they relate to the question as to whether the defendant could legally be convicted of larceny, practically similar to the facts in the case of Holbrook v. State, 107 Ala 154, 18 So. 109, 54 Am. St. Rep. 65, in which the Supreme Court held that the question of the defendant's guilt of larceny vel non was properly submitted to the jury. "It is a clear rule of law that, where a party has only the bare charge and custody of the goods of another, the legal possession remains in the owner; and the party in custody may be guilty of trespass and larceny in fraudulently converting the same to his own use." Oxford v. State, 33 Ala. 416; Roscoe, Crim. Ev. 646; Daniel Jackson v. State...