Earle v. State

• Decision Date: 08 June 1911
• Parties: EARLE v. STATE.
• Court: Alabama Court of Appeals

56 So. 32

1 Ala.App. 183

EARLE v. STATE.

Court of Appeals of Alabama

June 8, 1911

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

O. B Earle was convicted of grand larceny, and he appeals. Affirmed.

Tate & Walker, for appellant.

R. C Brickell, Atty. Gen., and T. H. Seay, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

The defendant was indicted for grand larceny, was tried and convicted, and was sentenced to the penitentiary.

During the progress of his trial in the court below, the defendant reserved exceptions to some of the rulings of the court relating to the admission of certain evidence, and it is to a consideration of those rulings that this opinion is addressed.

1. The evidence on behalf of the state tended to show that one Long who lived at Anniston, and who was an employé of the Southern Railway Company, and whose duties required him to be awake at night, went, about 8:30 o'clock one morning, with the defendant into the back room of a bar; that they sat together at a table and drank together; that Long having sat up the previous night, fell asleep, and when he awoke he ascertained that the defendant had disappeared, and that witness' watch, of the value of $30, and $65 in money, which he had on his person when he went to sleep, had also disappeared; that upon inquiry the witness ascertained that defendant had left Anniston for Talladega; that witness went immediately to Talladega, reaching there that night; that he secured a policeman, and that they found defendant asleep in bed in a room in a bawdyhouse. The evidence further tended to show that the defendant had in his possession the witness' watch and a part of his money, and that later a sufficient sum was paid witness to cover the said $65.

On cross-examination, the defendant asked the witness Long if he and the defendant did not play craps in the back room of the bar, and if the defendant did not win his money playing craps. The witness replied that he did not. The defendant then asked the witness, "It is against the rules of the railroad company for its employés to gamble, isn't it?" The solicitor objected to the question. The defendant's counsel then stated to the court that they expected to show by the witness that it is against the rules and regulations of the railroad company for its employés to drink, or to frequent saloons, or to gamble, or to play cards or dice, and that a penalty for a violation of this rule is a discharge of the employé. The court thereupon sustained the objection of the solicitor to the question and the defendant excepted. The witness Long had already testified that the money was stolen from him while in the back room of a barroom, and that he had been drinking there. If the rule inquired about existed, he had already subjected himself, under his testimony, to its penalties, and how his answer to the above question could have affected his credibility we are unable to see. Counsel for defendant contend that if they had been allowed to prove the existence of the rule, the jury might have inferred that the defendant testified that his money was stolen from him, and not lost in a game of craps, because of a fear on his part that he might lose his position if he admitted that he played craps or dice in violation of said rule. There was nothing in the evidence, up to the time the above question was asked, tending, in the remotest degree, to show that defendant had gambled on the occasion inquired about, nor does the above statement of counsel, in which they inform the court what they expect to prove, and which we have set out verbatim, tend to show that the defendant intended, at a later stage of the trial, to offer evidence that the witness lost his watch and money in a game of dice, and that it was not stolen. Having failed to bring his case within the reason of the rule declared in Pace v. L. & N. R. R. Co., 166 Ala. 519, 52 So. 57, the court properly sustained the objection of the solicitor to the above question.

2. The Southern Railway Company had no pecuniary interest in, nor was it a party to, this prosecution. The defendant was not charged with the larceny of any of its property, or of any property over which it had control, or which was on its premises when stolen. If it be a fact, as contended by counsel for defendant, that Reardon was an employé of the Southern Railway Company, and in that capacity aided its attorneys in the trial of its causes, that fact without more, would not, under the evidence in this case, have had the slightest legal tendency to show that, because Reardon had manifested interest in this case, the Southern Railway Company was in any way aiding in the prosecution of the defendant. The record contains no evidence tending to show that Reardon, if he took any interest in this case, was not acting on his own initiative, and the defendant offered no evidence tending to show that he was acting on behalf of the railroad company. As there is not the slightest reason shown why the railway company should have interested itself in this prosecution, and no evidence whatever that Reardon acted for it, or was authorized to act for it, the court...