Bolling v. State

• Decision Date: 11 April 1893
• Citation: 12 So. 782,98 Ala. 80
• Parties: BOLLING v. STATE.
• Court: Alabama Supreme Court

12 So. 782

98 Ala. 80

BOLLING v. STATE.

Supreme Court of Alabama

April 11, 1893

Appeal from circuit court, Butler county; John P. Hubbard, Judge.

Mary Jane Bolling was convicted of grand larceny, and appeals. Reversed.

The defendant demurred to the indictment on the ground that it failed to allege from whose storehouse the money was stolen and because it failed to allege who was in possession control, and ownership of the said storehouse from which the money was stolen. On the trial of the case, as is shown by the bill of exceptions, there was only one witness introduced, who was one Hamrick, a policeman in the city of Greenville. As is stated in the opinion, the most of his testimony is made up of statements made by Mrs. Knight and by himself, and a few of the statements made by the defendant. The defendant separately excepted to the introduction of each portion of this witness' testimony, and reserved an exception to each of the rulings of the court in overruling her objections. These rulings are sufficiently stated in the opinion. Upon the introduction of all the evidence the defendant asked the court to give the general affirmative charge in her behalf, and duly excepted to the court's refusal to give said charge.

Gamble & Powell, for appellant.

Wm. L Martin, Atty. Gen., for the State.

STONE C.J.

There is nothing in the present record which tends to explain why the testimony produced on the trial was so meager. It is reasonable to conjecture that the witnesses had gone beyond the power of the court to reach them with its process. We must deal with the questions as the record presents them. The indictment charges that defendant "feloniously took and carried away, in or from a storehouse, four dollars and fifty cents in specie coin of the United States, the denomination and description of which is to the grand jury unknown, the personal property of Mrs. May Knight," etc. The indictment sufficiently describes the offense, under our statute and forms. 2 Code 1886, § 3789; form No. 51, p. 272. To steal "personal property of any value *** from or in any storehouse" is made grand larceny, and a felony, by our statute. Section 3789. Much of the testimony adduced on the trial consisted of statements and charges made by Mrs Knight. She was not produced as a witness, and her statements were proved by the witness Hamrick, the policeman who made the arrest. The statements made by Mrs. Knight were severally objected to, and exceptions reserved severally to their admission. We hold that the only portions of Hamrick's testimony which should have been admitted were, first, that he arrested the defendant on a charge of larceny, preferred by Mrs. Knight. This charge being preferred out of the hearing of the accused, none of the particulars of the alleged larceny, related by Mrs. Knight to him, should have gone to the jury. It was hearsay, and not testimony. Hamrick was rightly permitted to testify that when he arrested the defendant she had a basket containing packages or bundles and that she thrust her hand into the basket, and under the bundles. The words added by the witness, "as though she were trying to conceal something," were, at most, only an inference drawn by him, and should not have been received. It was for the jury to determine what her purpose was in thrusting her hand into the basket, and under the bundles. This witness was also rightly permitted to testify that he himself found under the bundles "a handkerchief on which was written the name 'Mrs. May Knight,' and tied up in the corner of the handkerchief was some silver money, amounting to about three or four dollars;" also "that Mrs. Knight took the handkerchief and money, and said to, or in the presence of, the defendant that the handkerchief and money were hers." So, the remark addressed by Mrs. Knight to the accused, "You nasty, stinking thing, you stole it out of that store," and the reply of the defendant, "No, I did not, but, if I got it, I got it through a mistake," was also competent testimony. A charge made against another, and in his presence, if denied, is in no sense an...