Butler v. State

• Decision Date: 16 April 1891
• Parties: BUTLER v. STATE.
• Court: Alabama Supreme Court

9 So. 191

91 Ala. 87

BUTLER v. STATE.

Supreme Court of Alabama

April 16, 1891

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

The indictment in this case contained eight counts, the first charging the larceny by the defendant Clayton Butler, of a horse, the personal property of Hester Taylor; the second the larceny of a horse, the personal property of Lish Taylor and the others, in different words, charging the embezzlement of the horse by the defendant, or fraudulent conversion to his own use, while in his possession as agent, bailee, or under a loan for temporary use; some laying the ownership in Hester Taylor, and others in Lish Taylor, who was her husband. The defendant pleaded not guilty and, before entering on the trial, moved the court to require the prosecution to elect on which counts it would proceed,-whether on the counts for larceny, or on the counts for embezzlement; and he excepted to the overruling of his motion. On the trial, as the bill of exceptions shows, Lish Taylor testified in substance that he delivered the horse to the defendant in March, 1890, with the understanding and agreement that the defendant was to feed and take care of the animal until he got well, and was to have the use of him in the mean time in his business; and he denied that he had ever authorized the defendant to sell him. As to the ownership of the animal he testified: "It was my horse. I sold some of my wife's cattle, and took the money, put some of my own with it, and bought the horse; took him home, and gave him to my wife." He testified also that he went to the defendant's place several weeks afterwards to inquire about the horse, and was told that the animal was getting worse; that the defendant afterwards offered him $15 or $16 for the horse, but he refused to sell; that the defendant afterwards told him the horse was dead; and that some time afterwards, having discerned that the defendant had sold the horse, the defendant proposed to pay him $45 for it, in weekly installments, on his signing a bill of sale for it which was produced on the trial, but which he and his wife refused to sign. An exception was reserved by the defendant to the admission of this writing as evidence. The defendant testified that by the terms of the agreement under which he received the horse he was to be paid for his care and cost of the animal's feed; that the prosecutor, when he found that the animal was not improving, gave him authority to sell it; and claimed that he had a lien on the animal for its feed and care. A witness for the prosecution, who had informed Taylor that the horse was not dead, but had been sold by the defendant, and who went with Taylor to see the defendant about it, testified, among other things: "Butler was cursing and swearing and going on, and saying that he had not said the pony was dead." Afterwards the defendant asked a witness this question: "Do you or not know the general reputation of the defendant for profanity in the neighborhood in which he live in 1890?" The court sustained an objection to this question, and the defendant excepted. The defendant requested the following charges in writing, and duly excepted to their refusal: "(6) If the jury have a reasonable doubt as to whom said horse belonged,-whether to Hester Taylor or Lish Taylor,-then they must acquit the defendant." "(18) If the jury believe from the evidence that Lish Taylor delivered the horse to the defendant for the purpose of taking care of and attending to him, and that the defendant received the horse, attended to him, and fed him, then defendant would have a lien on said horse for his feed, and would have a right to keep possession until the amount due him was paid." "(20) If the jury believe the evidence they must find the defendant not guilty. (21) If the jury believe from the evidence that the defendant offered to pay Lish Taylor for the horse after the sale, as shown by the written instrument offered in evidence he had a right to do so, if he preferred to settle the matter in that manner. (22) If the jury believe from the evidence that the defendant did not sell the horse without authority, and did not take the horse with a felonious intent to steal, then he had...