Bryant v. State

• Decision Date: 27 January 1898
• Citation: 116 Ala. 445,23 So. 40
• Parties: BRYANT v. STATE.
• Court: Alabama Supreme Court

23 So. 40

116 Ala. 445

BRYANT v. STATE.

Supreme Court of Alabama

January 27, 1898

Appeal from city court of Mobile; O. J. Semmes, Judge.

Amanda Bryant was convicted of larceny, and appeals. Reversed.

The appellant, Amanda Bryant, was tried and convicted under the following indictment:

"The grand jury of said county charge that before the finding of this indictment, Amanda Bryant feloniously took and carried away in the county of Baldwin, in the state of Alabama, a diamond ring of the value of seventy-five dollars, the personal property of Annie Cirlot and brought said ring into the county of Mobile in the state of Alabama.

"And the said grand jury do further charge that before the finding of this indictment Amanda Bryant feloniously took and carried away in the county of Baldwin in the state of Alabama one gold ring with a diamond setting, the personal property of Annie Cirlot of the value of seventy-five dollars and brought such diamond setting which was of the value of fifty dollars into the county of Mobile in the state of Alabama.

"And the said grand jury do further charge that before the finding of this indictment Amanda Bryant in the state of Alabama, Baldwin county, feloniously took and carried away a gold ring with diamond setting of the value of seventy-five dollars, the personal property of Annie Cirlot and brought the diamonds which were in such setting and which were of the value of thirty-five dollars into the county of Mobile, state of Alabama, against the peace and dignity of the state of Alabama."

To this indictment and to each count thereof, the defendant demurred upon the following grounds: "(1) Because it is wholly insufficient, and does not charge any offense known to the law. (2) Because it does not charge the defendant with larceny of any property in Mobile county. (3) Because it simply charges the defendant with having stolen personal property in Baldwin county, and with bringing the same into Mobile county, but not with the larceny of such property in Mobile county. (4) Because said count is uncertain in this that it charges the defendant with stealing one gold ring with a diamond setting, and leaves it in doubt whether it was intended to allege that she stole a gold ring, containing a diamond setting, or whether it was intended to charge her with stealing both a gold ring and a diamond setting. (5) Because the said count alleges that the defendant stole a gold ring, containing a diamond setting in Baldwin county, state of Alabama, which, together, constituted one piece of property, and then charges her with bringing a part of said piece of property, to wit, the diamond setting, into the county of Mobile, state of Alabama." This demurrer was overruled. The facts of the case are sufficiently stated in the opinion.

Among the charges requested by the defendant and to the refusal to give each of which the defendant separately excepted, were the following: (14) "The court charges the jury that a person charged with a felony should not be convicted, unless the evidence excludes to a moral certainty every reasonable hypothesis but that of her guilt; no matter how strong the circumstances are, they do not come up to the full measure of proof, which the law requires, if they can be reasonably reconciled with the theory, that the defendant is innocent." (16) "The court charges the jury that good character itself may, in connection with all the evidence, generate a reasonable doubt and entitle the defendant to an acquittal, even though without such proof of good character you would convict." (17) "The defendant is authorized under the statute to testify in his own behalf, and the jury have a right to give full credit to his own statements." (18) "Gentlemen of the jury, I charge you, that the legal presumption of innocence is to be regarded by the jury, in every case, as a matter of evidence, to the benefit of which the accused is entitled, and, as a matter of evidence it attends the accused until his guilt is, by the evidence, placed beyond a reasonable doubt." (19) "Gentlemen of the jury, I charge you, that if the testimony in this case in its weight and effect be such as that two conclusions can be reasonably drawn from it, the one favoring the defendant's innocence, and the other tending to establish her guilt, law, justice and humanity alike demand that the jury shall adopt the former, and find the accused not guilty." (20) "The court charges the jury that where the presumption of guilt arising from the recent possession of stolen property is rebutted by a reasonable explanation of such possession which is consistent with the innocence of the defendant, such presumption is removed from the consideration of the jury, and the jury should not allow the evidence of such possession of said property any weight against the defendant in reaching a verdict in the case."

Leslie B. Sheldon, for appellant.

Wm. C. Fitts, Atty. Gen., for the State.

HARALSON J.

At common law, larceny is considered as committed in every county or jurisdiction into which the goods may be carried by the thief. "The legal possession of them still remains in the true owner, and every moment's continuance of the trespass and felony, amounts to a new caption and asportation." 2 Russ. Crimes, 283. Consequently, it has been held in this state, that when goods are stolen in one county and carried by the thief into another county, or he causes them to be so carried, and he there exercises dominion over them, this constitutes larceny in the latter county, and he may be there prosecuted and convicted. Whizenant v. State, 71 Ala. 383; Kidd v. State, 83 Ala. 58, 3 So. 442. Section 3723 of the Criminal Code which gives jurisdiction in such cases in either county, is an affirmation, and not an enlargement of the common-law rule on the subject. Smith v. State, 55 Ala. 59.

The indictment in this case, following form 51 of the Criminal Code, charges the larceny as having occurred in Baldwin county. It was not lacking in any necessary averment, of a larceny in that county. It then charges defendant, with having brought the property stolen into the county of Mobile. The indictment might have charged the larceny as having been committed in Mobile, omitting all reference to the commission of the crime in Baldwin, and on proof of the facts averred in this indictment, the defendant might have been convicted in Mobile, where, as alleged, she carried the property. There was no error in overruling the demurrer to the indictment. Rap. Larc...