Boswell v. State

Citation56 So. 21,1 Ala.App. 178
PartiesBOSWELL v. STATE.
Decision Date30 June 1911
CourtAlabama 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.

PELHAM J.

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 So....

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12 cases
  • The State v. Bunton
    • United States
    • United States State Supreme Court of Missouri
    • May 28, 1926
    ...... note, the constructive possession thereof remaining in the. real owner; hence, the act of the defendant in selling the. note involved a trespass upon the constructive possession of. the real owner. Chanock v. United States, 267 F. 612; Boswell v. State, 1 Ala.App. 178; Ludlum v. State, 69 So. 255; Commonwealth v. Doherty, 127. Mass. 20. "Possession and custody are in the law of. larceny widely distinguishable. There can be no trespass. against the custody, it is always against the possession, and. it can be committed as well by the ......
  • Patterson v. State
    • United States
    • Supreme Court of Alabama
    • May 16, 1918
    ...... judge, to establish, prima facie, the existence of the. conspiracy;" the evidence on which the judge acts need. not necessarily establish the corpus delicti. 1 Greenl. Ev. §. 184, a, b; 2 Jones Ev. § 254; Stephens, Ev. 46; Morris v. State, 146 Ala. 66, 41 So. 274; Boswell v. State, 1 Ala.App. 181, 56 So. 21; Smith v. State, 8 Ala.App. 187, 62 So. 575. . . The. confession of defendant Patterson, in the absence of. defendant Harris, was not competent evidence against the. latter, and should have been limited by proper instructions,. as being ......
  • Reynolds v. State
    • United States
    • Alabama Court of Appeals
    • June 30, 1943
    ...possession of the goods, and the conversion of them by the defendant is such a trespass to that possession as makes it larceny. Boswell v. State, supra; Holbrook v. State, 107 Ala. 154, 18 So. 109, Am.St.Rep. 65; Mitchell v. State, 2 Ala.App. 147, 56 So. 56; Williams v. State, 165 Ind. 472,......
  • Murchison v. State
    • United States
    • Alabama Court of Appeals
    • June 11, 1946
    ...event the latter did not part with the title to the money, but on the contrary retained constructive possession thereof. Boswell v. State, 1 Ala.App. 178, 56 So. 21; Rosenblum v. State, 19 Ala.App. 442, 98 So. Reynolds v. State, supra; Reynolds v. State, 245 Ala. 47, 15 So.2d 605; Holbrook ......
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