Boswell v. State
| Decision Date | 30 June 1911 |
| Citation | 56 So. 21,1 Ala.App. 178 |
| Parties | BOSWELL v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from City Court of Selma; J. W. Mabry, Judge.
Elijah Boswell was convicted of grand larceny, and he appeals. Affirmed.
Mallory & Mallory and Craig & Craig, for appellant.
R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.
The indictment in this case jointly charged defendant and Louis Fitten with grand larceny. A severance was granted, and the defendant tried separately. The evidence on the part of the state tended to snow that the defendant, while with Louis Fitten, by means of subterfuge or trickery procured from the prosecuting witness $75 to be put with a sum of money fictitiously claimed to have been found by him the total amount to be subsequently divided among the parties. The defendant denied the transaction, and introduced proof setting up an alibi.
The question asked the prosecuting witness, Purnell, on redirect examination, "Did Louis (referring to Louis Fitten) hide behind his brother, and didn't Mr. Mallory tell the man to let him get out so you could see him?" had a direct bearing on the matters asked about on the cross-examination of the witness by defendant on the question of identification, and was permissible as being a re-examination of the witness on the matters brought out by defendant on cross-examination. It was also proper as having a tendency to show the existence of a conspiracy between Fitten and the defendant to take the money of witness and confuse him as to the identity of the guilty party. The acts, declarations, and conduct of a person concerned in the common purpose to commit a crime are admissible as evidence against the others. McAnally v. State, 74 Ala. 9; Johnson v State, 87 Ala. 39, 6 So. 400; Hunter v. State, 112 Ala. 77, 21 So. 65; Martin v. State, 136 Ala. 32, 34 So. 205.
Charge No. 1 requested by the defendant was properly refused. There was evidence which, if believed, was sufficient to authorize the jury to find the defendant guilty of the charge.
Charge No. 2 singled out the evidence of the witness Sam Jackson and gave undue prominence to it. It is bad also, in that it bases an acquittal on a belief of part of the evidence, and does not require the jury to consider all of the evidence in connection with that of the witness Jackson in arriving at a verdict. The prosecuting witness states the money was taken between 12 and 1 o'clock, and the witness Jackson says he last saw the defendant on the day in question at 12:30 o'clock.
There was no error in refusing charge No. 5. If the defendant, when he received the money, entertained the fraudulent purpose of appropriating it to his own use, he would be guilty of larceny. Levy v. State, 79 Ala. 259; Eggleston v. State, 129 Ala. 80, 30...
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