Dupree v. State

• Decision Date: 24 January 1907
• Citation: 148 Ala. 620,42 So. 1004
• Parties: DUPREE v. STATE.
• Court: Alabama Supreme Court

42 So. 1004

148 Ala. 620

DUPREE v. STATE.

Supreme Court of Alabama

January 24, 1907

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

Will Dupree was convicted of burglary, and he appeals. Affirmed.

Will Dupree was indicted for the burglary of Greil Bros. Co.'s store. The evidence tended to show that on the night of the burglary the store was closed, and how and when it was closed was shown by Owens. The next morning the lock on the back door next to the freighthouse of the Louisville & Nashville Railroad Company was broken. Certain goods with Greil Bros.' mark on them were found piled in the nook or jamb of the freighthouse door next to the store of Greil Bros. The defendant was standing there when the goods were discovered.

The objections to testimony, with one or two exceptions, are sufficiently disclosed by their discussion in the opinion. The witness McDade was testifying, and, after the question objected to was asked and the answer given, the objection was made and motion to exclude was interposed. He testified to the facts that the goods carried to police headquarters were the goods found near the back door of Greil Bros.' store in the jamb of the doorway of the freighthouse.

The state was permitted to show that on the night of the burglary, about 12 o'clock, the defendant and one Webster and Cohn were together in a barroom, and soon after were seen together in an eating house near the bar. The evidence of several witnesses tended to show that the burglary was committed, or planned and committed, by these parties. It was further shown by the state that the defendant was captured by officers in Savannah, Ga., and, while being brought home after showing that no promise, threat, or inducement of any kind was offered or held out to the defendant, the officer who had charge of him was allowed to detail a conversation had with the prisoner.

Quite a number of charges were asked by the defendant, and refused. As they are not discussed, it is deemed unnecessary to set them out.

Pearson & Richardson, for appellant.

Massey Wilson, Atty. Gen., for the State.

HARALSON J.

G. D Owens, a witness for the state, who was an employé at the store of Greil Bros. Company,--whose store in Montgomery was alleged to have been broken into,--testified to facts tending to show the burglary of said store. He described the condition of the back door, on the outside and on the inside of the store, and the lock that was on it. He was asked by the defendant on the cross: "Is it or not possible for this lock (which was on the door inside), to have been broken this way from the outside of the store?" also, "Is it not a fact, it was a physical impossibility for a person to have stood on the outside of the Greil Bros. Company store, and broken that lock from the outside?" and still again, "Is there any way from the outside to have broken that lock at the time, or after the witness saw it securely locked?" These were questions proper for the determination of the jury, and they were as competent to answer them as the witness. Orr v. State, 117 Ala 69, 23 So. 696; Hill v. State, 137 Ala. 66. 34 So. 406.

The witness, Henley, for the state, testified, that he was an employé of the Louisville & Nashville Railroad Company, as night porter; that early in the morning after the night when said store was burglarized, some pistol shots were fired at or near the Louisville & Nashville freighthouse, close to said store, separated by a narrow alley, and he went down near the freight depot, and saw defendant there; and, at the place where defendant was standing, was piled the goods described as having been taken from said store; that the goods were piled in a nook of said freight depot, almost opposite the place where the door of Greil Bros Company's store was found broken open. The solicitor asked the witness, "after a proper predicate was laid,"--as the record recites,--"What did Will Dupree [the defendant] say to you?" An objection, for incompetency and immateriality, was overruled. What the predicate was,...