Davis v. State

• Decision Date: 25 November 1947
• Docket Number: 4 Div. 10.
• Citation: 34 So.2d 15,33 Ala.App. 299
• Parties: DAVIS v. STATE.
• Court: Alabama Court of Appeals

34 So.2d 15

33 Ala.App. 299

DAVIS v. STATE.

4 Div. 10.

Alabama Court of Appeals

November 25, 1947

Rehearing Denied Dec. 16, 1947.

E. C. Boswell and Mulkey & Mulkey, all of Geneva, for appellant.

A A. Carmichael, Atty. Gen., and Richard S. Brooks, Asst. Atty Gen., for the State.

CARR Judge.

We take a statement of the facts in this case from the brief of appellant's counsel:

'On August 7, 1945 the Grand Jury of Geneva County, Alabama returned an indictment against the Appellant, Henry Davis charging him by Count One with the offense of grand larceny in that he feloniously took and carried away a tractor tank of the value of $30.00, a tractor carburetor of the value of $18.00, four pistons of the value in the aggregate of $8.00, and four tank connecting rods of the value of $10.00, the personal property of Sherwood Bedsole, and by Count Two with the offense of buying, receiving, concealing or aiding in the concealing of the same property, knowing that said property was stolen and not having the intent to restore it to the owner.

'The Appellant was tried before a petit jury of Geneva County on January 7, 1947. After the cause had proceeded to the extent of the examination of the first witness, Sherwood Bedsole, the owner of the alleged stolen property, the State elected to move for a nolle prosequi as to the second count of the indictment. The Court granted this motion.

'The jury found the Defendant guilty of petit larceny and assessed a fine against him of $200.00, and the Court, in addition thereto, sentenced the defendant to perform hard labor for the State of Alabama for the use of Geneva County for a period of three months. The testimony adduced by the State came from the lips of only two witnesses, Sherwood Bedsole, the owner of the alleged stolen property, and his wife, Mrs. Sherwood Bedsole.

'It appears that Sherwood Bedsole owned a farm situated at a place removed from his home, and that his tractor in January 1945 and thereafter was located at or on this particular farm. Bedsole testified that he saw his tractor in January 1945 and that he did not again see it until April 28, 1945, at which time the tractor tank was missing. There was no evidence by Bedsole, or anyone, as to the date of the month that the tractor tank was removed from his tractor.

'Later, and in the early part of May 1945 Bedsole missed, according to his testimony, the carburetor and manifold from his tractor, and on May 11th he went over to his farm and he then missed the wheel. He testified that near to the tractor was what he thought, car tracks. In substance he testified that he tracked this car or truck from his farm down the Florala highway, which was a graded highway, to the Jackson's Still road, and from there to the home of the Appellant, Henry Davis, where he found hanging on the fence in front of the appellant's home and in close proximity to a public road a tractor tank, which he testified was his.

'Mrs. Bedsole corroborated the testimony of her husband to the extent of tracking the truck to the home of the Appellant and seeing the tank which she identified as the tractor tank belonging to her husband. Both Mr. and Mrs. Bedsole testified that Henry Davis, the Appellant, at first denied but later admitted that the tank belonged to the prosecuting witness, Bedsole.

'The Appellant strenuously denied that at the time Sherwood Bedsole and his wife came to his place on May 11, 1945, or at any other...