Crittenden v. State

• Citation: 32 So. 273,134 Ala. 145
• Parties: CRITTENDEN v. STATE.
• Decision Date: 12 June 1902
• Court: Supreme Court of Alabama

32 So. 273

134 Ala. 145

CRITTENDEN v. STATE.

Supreme Court of Alabama

June 12, 1902

Appeal from city court of Montgomery; William H. Thomas, Judge.

Tom Crittenden was convicted of larceny, and appeals. Affirmed.

The indictment under which the appellant was tried and convicted was in words and figures as follows: "The grand jury of said county charge that, before the finding of this indictment, Will Lowe and Tom Crittenden feloniously took and carried away eighteen cows, the personal property of J. B Milligan. The grand jury of said county further charge that before the finding of this indictment, Will Lowe and Tom Crittenden feloniously took and carried away eighteen cows the personal property of J. H. Milligan, against the peace and dignity of the state of Alabama." Upon a demand a severance was ordered, and the defendant Tom Crittenden was tried separately. The defendant demurred to the indictment upon the following grounds: "(1) Because said indictment charges two separate and distinct offenses of larceny from two separate and distinct owners. (2) Because said indictment in each count fails to aver the Christian name of the owner of the property alleged to have been stolen, and fails to aver that such Christian name of said alleged owner in each count was to the grand jury unknown." In reference to the organization of the jury for the trial of the defendant the bill of exceptions contains the following recital "During the organization of the jury, twelve of the regular jurors for the week of said term were in the jury box. The state challenged three of said jurors, and the court thereupon ordered the defendant to pass upon the remaining nine jurors. Thereupon the defendant moved the court to complete the jury from the regular jurors who were in attendance upon the court, before he be required to pass upon the jurors remaining in the box. The court refused to grant said motion, to which action of the court defendant then and there duly and legally excepted. The venire for the week being exhausted, the jury being incomplete, the defendant moved the court to draw from the jury box a sufficient number of names to complete said jury. The court overruled said motion, and the defendant then and there duly and legally excepted to the ruling of the court. The court ordered the sheriff to summon from the qualified citizens of the county the regular number of jurors to complete said jury, to which action of the court the defendant then and there duly and legally excepted." On the trial of the case the state introduced evidence tending to show that the defendant, Will Lowe, and Tom Crittenden had feloniously taken and carried away 18 head of cattle; that 5 or 6 of said cattle belonged to J. H. Milligan, and 12 or 13 of them belonged to J. B. Milligan, and that the cattle were taken while out in a range owned by one of the said Milligans, a long distance from Montgomery, and were carried by the defendant and Crittenden, with the assistance of others, to Montgomery, and there sold. There was further evidence on the part of the state that the defendant, in conversation with the wife of Tillman Crittenden, one of his accomplices, confessed to having stolen the cows as charged in the indictment. The defendant introduced evidence tending to show an alibi. The defendant denied having made a confession to Mrs. Tillman Crittenden. The other facts of the case are sufficiently stated in the opinion. The court, at the request of the state, gave to the jury the following written charges: "(1) The slightest corroboration of the testimony of an accomplice is sufficient if it tend to connect the defendant with the commission of the offense. (2) If the jury believe from the evidence, beyond a reasonable doubt, that in this county, and within three years before the finding of this indictment, J. B. Milligan or J. H. Milligan had 18 or any number of cows feloniously taken and carried away, and that the defendant Tom Crittenden confessed that he was one of the persons engaged in such felonious taking and carrying away of said cows, this is sufficient to authorize the conviction of the defendant, without regard to the testimony of the accomplice. (3) A confession by the defendant, if one was made, is admissible as corroborating evidence of that of an accomplice, and may be taken by the jury as a sufficient corroboration to authorize a conviction. (4) If the jury believe from the evidence, beyond a reasonable doubt, that the alibi set up in this case is simulated, false, and fraudulent, they may consider this as a circumstance against the defendant, in connection with all the other evidence in the case." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by him: "(19) The court charges the jury that if they believe that Tom Crittenden on the evening of the 19th of March, 1900, was at his home, at Shady Grove, and that on the same evening, before sundown, three men stopped at the house of Dan Seagers with a bunch of 18 cattle, they must acquit the defendant. (20) Before the jury can find the defendant guilty, they must find, beyond a reasonable doubt, that the defendant and Will Lowe and Tillman Crittenden drove 18 head of cattle to the house of Dan Seagers on the afternoon of March 19, 1900." "(22) Before the jury can find the defendant guilty, they must believe beyond a reasonable doubt that the 18 head of cattle alleged to have been stolen on the 19th of March, 1900, was the property of J. B. Milligan." "(17) The court charges the jury that they must believe beyond a reasonable doubt that 18 head of cattle were stolen from J. H. Milligan and J. B. Milligan on the 19th day of March, 1900, by the defendant, before they can convict this defendant." "(23) Before the jury can find the defendant guilty, they must find beyond a reasonable doubt that the property stolen was the property of J. H. Milligan." "(21) The court charges the jury that the independent loss of 18 head of cattle does not constitute the offense as charged in this indictment." "(6) If the jury have a reasonable doubt that the defendant was not in the city of Montgomery on the 21st day of March, 1900, then they must find the defendant not guilty." "(14) If the jury have a reasonable doubt as to whether Tillman Crittenden assisted in driving the cattle from the pasture of Mr. Lowe to the stock pen in the city of Montgomery, then they must acquit the defendant." "(22 1/2) Although the jury may believe from the evidence that the defendant made a confession to Mrs....