Carl v. State

• Decision Date: 12 April 1900
• Citation: Carl v. State, 125 Ala. 89, 28 So. 505 (Ala. 1900)
• Parties: CARL v. STATE.
• Court: Alabama Supreme Court

28 So. 505

125 Ala. 89

CARL v. STATE.

Supreme Court of Alabama

April 12, 1900

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

Joseph Carl was convicted of larceny, and he appeals.Reversed.

The indictment under which the appellant in this case was tried and convicted contained six counts.The first three counts in the indictment charged that the defendant feloniously took and carried away 100 pine logs, the said three counts differing from each other in the way in which the ownership to the lands from which the logs were taken is alleged.The court gave the general affirmative charge in favor of the defendant upon these three counts.The fourth, fifth, and sixth counts of the indictment were as follows:

(4)"The grand jury do further charge that before the finding of this indictment Joseph Carl knowingly willfully and without the consent of the owner entered upon the land of Catherine Bancroft, and cut and carried off timber of the value of twenty-five dollars or more."

(5)"And the said grand jury do further charge that before the finding of this indictment Joseph Carl knowingly willfully, and without the consent of the owner thereof entered upon the land of Catherine Bancroft, Josiah BancroftCora Pickens, George Bancroft, Kate Bancroft, Marion Bancroft, Maggie Bancroft, Maud Bancroft, and Bessie Bancroft, and cut and carried off timber of the value of twenty-five dollars or more."

(6)"And the said grand jury do further charge that before the finding of this indictment Joseph Carl willfully knowingly, and without the consent of the owner entered upon the land of Josiah Bancroft, Cora Pickens, George BancroftKate Bancroft, Marion Bancroft, Nellie Bancroft, Maggie Bancroft, Maud Bancroft, and Bessie Bancroft, and cut and carried off timber of the value of twenty-five dollars or more, against the peace and dignity of the state of Alabama."

The defendant made a motion to quash the indictment because there was no legal evidence before the grand jury which found it as to the commission of the offense charged.After hearing the evidence upon this motion, the court overruled it, and to this ruling the defendant duly excepted.Thereupon the defendant demurred to the fourth, fifth, and sixth counts of the indictment upon the following grounds: (1) Because it did not charge the defendant with any offense known to the law.(2) Said counts do not charge that the defendant carried off the timber with the intention of converting it to his own use.This demurrer was overruled, and the defendant duly excepted.

The evidence in the case tended to show: That the appellant employed a man to cut 100 pine trees which were growing on certain uninclosed wild lands claimed by the persons named as the owners thereof in the indictment.That before this man entered the lands to cut, and before he commenced cutting the trees thereon, the appellant blazed the trees, and informed the man which trees he wanted cut.That the trees were cut by this man, but that they were not all cut on the same day, but that some were cut on one day and some on other days, extending through a period of about two or three weeks, and that the cutting commenced about the 1st of August, 1898.That in cutting the trees the man would enter the land, cut all or a part of the day, then go to his home, which was on a different piece of land, and each day that he did the cutting he would re-enter the lands to do the same.That after all the timber was cut it was converted into logs, and was then, at different times, and on different days, by another man employed by the appellant to do so, hauled from where it lay to a landing on said lands on a river, where it was then made into a raft, and then carried off as a raft in said river.That the said hauling was done about the middle of the said month of August, and covered a period of about eight or ten days, the logs being during this period hauled one by one, and some on one day and some on another.That the cutting and carrying off of this timber was done without the consent of the persons named in the indictment as the owners.There was also evidence tending to show that the appellant claimed that he did the cutting of said timber by the authority of a Mr. Stoutz, and there was evidence tending to show that this claim was untrue.

Upon the examination of Josiah Bancroft as a witness for the state, he testified that he was a son of Charles M. Bancroft, deceased, and that his mother, who was the widow of said Charles M. Bancroft, deceased, was Catherine Bancroft; that his brothers and sisters were the same parties as those who were named in the indictment.This witness further testified that his father left a will, and that Catherine Bancroft was the duly-appointed executrix of said will; that the lands from which the timber was cut by the defendant belonged to his father during his lifetime, and that the timber was cut by the defendant without permission of any of the owners of said land.This witness also testified that Catherine Bancroft was the owner of said land.Upon the cross-examination of said witness, after he had testified that he had employed one Richard Kipp to look after the lands, and to keep people from trespassing upon them, he further testified that the only possession he and his mother or his brothers and sisters had of said land was that which was given to them under a deed; and that none of them lived on the said land, nor did their agent live on the said land, and that he had never been on said land.The defendant's counsel then asked the witness whether he knew if the lands were wild, uninclosed lands or not.The court thereupon stated that the witness could not answer the question, since he had just testified that he had never seen the lands.Upon the defendant's counsel stating that the witness knew that he was in possession of said lands, and that neither he nor his mother did not live there, and that what he wished to show by the witness was that nobody was in the actual possession of said lands, the court stated that the witness could not answer the question.Upon defendant's counsel asking the witness whether or not his mother was in possession of said land, and whether or not he was in possession of said land, the court refused to allow such questions to be asked, stating to the defendant's counsel that he could not testify to such facts having already testified that he had never seen the lands.To this ruling the defendant duly excepted.

The witness Josiah Bancroft also testified that the defendant admitted or confessed to him that he had cut the timber from the lands in question.This witness testified to the defendant's confession before any testimony was introduced showing by the commission of the offense charged.Thereupon the defendant objected to such testimony upon the ground that the corpus delicti had not been proven.The court overruled the objection, and the defendant excepted.Evidence to show the commission of the offense by the defendant was subsequently introduced by the state.

During the examination of Catherine Bancroftshe testified that she was the widow of Charles M. Bancroft, deceased, and that she was duly appointed executrix of her husband's will.The solicitor for the state asked this witness whether or not her husband was the Charles Bancroft to whom Mr. William Otis willed the property from which the timber was alleged to have been taken.To this question the defendant objected upon the ground that the will of Mr. Otis was the best evidence to prove such fact.The court overruled the objection, and the defendant duly excepted.The witness answered that her husband was the Charles Bancroft to whom Mr. Otis had devised said property.

The state introduced in evidence the book of wills in which wills which were probated in the probate court of Mobile county were kept to show the admission to probate on October 26, 1895, of the will made by Charles M. Bancroft, by which he appointed Mrs. Catherine Bancroft executrix of the estate, and devised the estate, after the payment of his debts, to Mrs. Catherine Bancroft for her life, to use, manage, and control the same for her benefit and for the benefit of his and her children.The state also introduced so much of the book of wills as contained the will of William Otis, deceased, in which he bequeathed some of the lands from which the timber involved in this case was taken to Charles M. Bancroft.

The state not having shown that either Mrs. Catherine Bancroft or the children of Charles M. Bancroft, deceased, were in possession of the land at the time the timber was alleged to have been taken therefrom, the court excluded all of the testimony that was before the jury relating to the ownership of the land of Charles M. Bancroft.

The state then offered in evidence a deed from A. O. Sibley and his wife to Charles M. Bancroft, dated March 24, 1894, conveying some of the lands from which the timber was alleged to have been cut.The state then offered in evidence a patent duly executed on April 14, 1894, wherein the state of Alabama conveyed unto Charles M. Bancroft some of the lands from which the timber was alleged to have been taken.The state also offered in evidence a deed from Thomas Templeton and his wife to Catherine Bancroft, executrix, dated August 26, 1898, in which part of said lands was conveyed.

The state did not prove that either of the grantors in the respective deeds mentioned was in possession of the lands at the time of the execution of said deeds, nor did the state prove how the state acquired title to the land included in the patent issued to Charles M. Bancroft.

The defendant separately objected to the introduction of each of said deeds and said patents in evidence upon the ground that they were...