Fowler v. State

• Decision Date: 07 February 1894
• Citation: 100 Ala. 96,14 So. 860
• Parties: FOWLER v. STATE.
• Court: Alabama Supreme Court

14 So. 860

100 Ala. 96

FOWLER v. STATE.

Supreme Court of Alabama

February 7, 1894

Appeal from circuit court, Geneva county; J. M. Carmichael, Judge.

Thomas J. Fowler was convicted of larceny, and appeals. Reversed and remanded.

Upon the examination of Charles L. Phillips, it was shown by the state that the said Phillips owned an ox, and that it had not been seen since about the 6th of September, 1892. This witness further testified "that some two or three weeks after that time he was shown some horns; that one Murdock had the horns, and had gotten them from one Martin; that they were the horns of the ox which he lost; that his attention was called to an indenture in one of the horns;" and by other ways the said witness identified the horns as being the horns of the ox which he had lost. After having stated that the witness purchased the ox in question, and another one from Malone & Collins, the defendant's counsel, on cross-examination, asked said Phillips "if it was not the understanding at the time he got the ox from Malone &amp Collins that he should keep the oxen until fall, and that, if he was able to pay for them, he was to take them; otherwise he was to pay rent on them to Malone & Collins." To this question the witness answered in the affirmative. He was then asked "if he had ever paid Malone & Collins for the oxen, or offered to pay them for the same." The state objected to this question, the court sustained the objection and the defendant duly excepted. It was further shown that an ox answering, to some extent, the description of the one lost by Phillips, was killed and butchered near the house of one Jesse Spigner. There was also testimony tending to connect the defendant with the crime with which he was charged. At the request of the state, the court gave the following written charges to the jury: (1) "The doubt to acquit the defendant must be actual and substantial, not mere possibility or speculation. It is not a mere possible doubt because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt." (2) "While the law requires the guilt of the accused to be proved beyond a reasonable doubt, it does not require that each fact which may aid the jury in reaching the conclusion of guilt shall be clearly proved; but that, on the whole evidence, the jury must be able to pronounce that guilt is proved to a moral certainty." The defendant separately excepted to the giving of each of these charges. At the instance of the defendant, the court instructed the jury that there was no evidence in the case to show where the horns testified about were found, and the solicitor asked the following charge in rebuttal, and it was given by the court (3) "If the jury believe from the evidence that a brindle ox was butchered near the house of Jesse Spigner, and that the ox so butchered was the property of Charles L. Phillips, then the jury may consider this fact, if it be a fact, in connection with the whole evidence in determining where the horns testified about were found, if they further believe from the whole evidence that the horns said to have been found were the horns from Phillips' ox." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges, requested by him: (1) "Larceny is the wrongful taking and carrying away by any person of the mere personal goods of another from any place, with a felonious intent to convert them to his own use and make them his own property, without the consent of the owner. Suspicious circumstances that all the above may be true will not do, but, in order to convict, the state must prove all the above to the entire satisfaction of the jury. Character is not what the defendant is tried for, neither can the jury consider the same except for the purpose of determining the truth of the particular facts testified to by the witness whose character was the subject of the particular proof." (2) "Before the jury can commence to investigate the facts as to who the guilty party is, if one is guilty, the state must first show that the ox in question was killed. It must be without a reasonable doubt the ox of Charles Phillips, and the killing must have been with a guilty knowledge that the same was stolen from the owner with the purpose to fraudulently convert it to the use of the party taking it. Unless this is first fully and certainly established, the jury go no further, and acquit." (3) "On a trial for the stealing and carrying away an animal of the cow kind, there being no direct proof...