Farzley v. State, 8 Div. 34

• Decision Date: 19 March 1935
• Docket Number: 8 Div. 34
• Citation: 26 Ala.App. 387,163 So. 393
• Parties: FARZLEY v. STATE.
• Court: Alabama Court of Appeals

163 So. 393

26 Ala.App. 387

FARZLEY v. STATE.

8 Div. 34

Court of Appeals of Alabama

March 19, 1935

Rehearing Denied April 16, 1935

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

George Farzley was convicted of receiving stolen property, and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Farzley v. State (8 Div 655) 163 So. 394.

Fred S Parnell, of Florence, for appellant.

A.A Carmichael, Atty. Gen., for the State.

SAMFORD Justice.

Two detectives, Little and Fason, procured two negroes to burglarize the storehouse of Mr. Jenkins, which they did, under the supervision of Little and Fason about 3 a. m. From the storehouse they took and carried away a lot of groceries, tobacco, cigarettes, etc. Under a previous arrangement between Fason and this defendant, the tobacco, cigarettes, and snuff were sold and delivered to this defendant at his store on the morning of the burglary by Fason, who made the delivery about 8:15 a. m. at an agreed price of $15, which was paid to him that night. Of this amount Fason paid to the negroes $3.75 each and paid the other $7.50 to the city commission of the city of Florence by whom he was employed. The foregoing is the testimony of Little and Fason and is without corroboration except as to the fact that Jenkins' store was burglarized and a lot of goods were taken. None of the goods stolen from the Jenkins' store were ever traced to the possession of defendant, except as hereinabove stated.

The defendant, as a witness in his own behalf, denied having received the goods as testified to by Fason and offered some evidence tending to corroborate his statement.

The court refused to give, at the request of defendant, the general affirmative charge and in his oral charge instructed the jury, "Before you can convict the defendant you must believe that the personal property of Jenkins was received or bought or that he aided in concealing, or buying, or having reason to believe it was stolen." To this part of the oral charge the defendant excepted and also separately excepted to that part: "Or having reason to believe it was stolen."

The excerpts from the oral charge excepted to were used by the court in stating to the jury the elements of the offense charged and as fixed by the statute (Code 1923, § 4912). The indictment followed the form laid down in the Code (Code 1923, § 4556, form 90) and charges sufficiently the elements necessary to be proven beyond a reasonable doubt before a conviction can be had. Having reasonable grounds for believing that the goods have been stolen is not an element of the offense charged, but constitutes an evidentiary presumption of fact, from which the jury may and are justified in finding a guilty scienter. A defendant may not be convicted of receiving stolen goods, unless and until the state has shown by the evidence that the defendant knew them to have been stolen, but where the state has shown facts that would lead an ordinarily prudent man to believe the goods were stolen, the jury is authorized to find from such facts that he had the knowledge necessary to warrant a verdict of guilt. Tyler v. State, 17 Ala.App. 495, 86 So. 93; Vacalis v. State, 204 Ala. 345, 86 So. 92; Jordan v. State, 17 Ala.App. 575, 87 So. 433.

According to the record in this case, the defendant was convicted solely on the uncorroborated testimony of Fason, who according to his own and other testimony was an accomplice. Fason procured the burglary to be committed; Fason procured the goods to be stolen; Fason made the delivery of the goods to the...