Black v. State

• Decision Date: 28 February 1888
• Citation: 3 So. 814,83 Ala. 81
• Parties: BLACK v. STATE.
• Court: Alabama Supreme Court

3 So. 814

83 Ala. 81

BLACK v. STATE.

Supreme Court of Alabama

February 28, 1888

Appeal from circuit court, Conecuh county; JOHN P. HUBBARD, Judge.

Indictment for grand larceny. The indictment in this case contained but a single count, which charged the defendant with the larceny of a hog, "the personal property of some person, whose name to the grand jury is unknown;" and trial was had on issue joined on the plea of not guilty. On the trial, as appears from the bill of exceptions, the state introduced one Roach as a witness, who testified, in substance, that he owned a "bunch of hogs," which were running in the swamp of Murder creek, near the defendant's house; that they were of different colors,-black, red, and white, and black spotted; that he missed several of them, and finding near a spring, which was used by the defendant and his family, marks showing that a hog had been recently cleaned there, he procured a search-warrant, and went with an officer to the defendant's house; that they told the defendant that they were looking for hog meat, and asked if he had any that he said that he had, and told them to search his premises; that they found several parts of a hog, and with them the head; that the ears were unmarked, the weight of the hog, in his judgment, about 100 pounds, and the color black or white and black; and that the defendant told them that he had killed the hog in the swamp a few days before, and that Isam Autrey, his father-in-law, "had told him that he could have some of his hogs which were running wild in the swamp." One Matthews, the officer who executed the search-warrant, testified to the same facts, in substance and was asked, on cross-examination, "if he had lost any hog or hogs," to which he replied "that he had, and that his hog was white, was marked, and would weigh from sixty-five to one hundred pounds." The defendant then asked the court to exclude from the jury "all that this witness had said about his hog, or the loss thereof;" and, this motion being overruled, he moved the court to "require the state to elect as to which hog-that of Roach or that of Matthews-a conviction would be asked;" which motion was also overruled, and exceptions duly reserved to each ruling. Isam Autrey testified, on the part of the defense, that he had given the defendant permission to kill some of his hogs which were running in the swamp, and that the defendant had sent him some of the meat of the hog which he had killed; and there was other evidence on the part of the defendant that the killing was done openly, and that there was no denial or attempt at concealment by him. The defendant requested the following charges in writing, and duly excepted to their refusal: (1) "If the taking was open and notorious, and there was no subsequent attempt to conceal the property, and no denial, but an avowal of the taking, a strong presumption arises that there was no felonious...