Dorsey v. State

• Decision Date: 19 June 1902
• Citation: 134 Ala. 553,33 So. 350
• Parties: DORSEY v. STATE. [a1]
• Court: Alabama Supreme Court

33 So. 350

134 Ala. 553

DORSEY v. STATE. ^[a1]

Supreme Court of Alabama

June 19, 1902

Appeal from criminal court, Jefferson county; D. A. Greene, Judge.

Will Dorsey was convicted of robbery, and appeals. Affirmed.

Bowman Harsh & Beddow, for appellant.

Chas G. Brown, Atty. Gen., for the State.

McCLELLAN C.J.

As it appeared originally in the transcript, the first count of the indictment employed the word "felinously," where the word "feloniously" should have been used, and in the second count the word "feloniously" was omitted. The copy of the indictment sent up in response to the writ of certiorari, however, shows that it employs the word "feloniously" in each count. So that the brief of counsel attacking the indictment as first certified to us has now no pertinency.

The indictment is as follows: "The grand jury of said county charge that before the finding of this indictment, and before the 17th day of February, 1898, Will Dorsey, Sidney Walker and Jim Kelly feloniously took seven silver dollars and one silver half dollar, of the silver coin of the United States of America, the property of George McNamara, from his person or in his presence, and against his will, by violence to his person, or by putting him in such fear as to unwillingly part with the same. The grand jury of said county further charge that before the finding of this indictment Will Dorsey Sidney Walker, and Jim Kelly, feloniously took seven silver dollars and one silver half dollar, of the silver coin of the United States of America, the property of Dave McNamara, from the person of George McNamara, or in the presence of said George McNamara, and against his will, by violence to his person, or by putting him in such fear as to unwillingly part with the same; against the peace and dignity of the state of Alabama." The evidence showed without conflict that George McNamara was the minor son (14 years of age) of Dave McNamara; that he lived with his father, and was supported by the father as a member of the family; that the boy worked for his father, the latter agreeing to pay him $7.50 per month for his services; that the father had just paid the son a month's wage, according to this understanding; and that it was this money that was taken from the boy. On this evidence the defendant requested the following charges: "(1) If the jury believe the evidence, they must find the defendant not guilty under the second count of the indictment. (2) If the jury believe the evidence, they must find the defendant not guilty under the first count of the indictment. (3) If the jury believe the evidence, they must find the defendant not guilty. (4) The court charges the jury that, if George McNamara was under the age of twenty-one years, that all personal property claimed by said George McNamara was the property of the father; and, unless the evidence shows that George McNamara was over the age of twenty-one years, or had been emancipated by his father, or had his disabilities of nonage removed, then in that event the jury cannot convict the defendant under the first count of the indictment." The father being entitled to the services of his unemancipated minor son, the payment of wages by him to the son is, of course, in the nature of a gift; but the executed gift (the purpose to give having been carried out by delivery) by the father to the son vested the property--the money --absolutely in the son for all the purposes of this case, and left no property or...