Fulton v. State

• Decision Date: 17 June 1913
• Citation: 8 Ala.App. 257,62 So. 959
• Parties: FULTON v. STATE.
• Court: Alabama Court of Appeals

62 So. 959

8 Ala.App. 257

FULTON v. STATE.

Court of Appeals of Alabama

June 17, 1913

Appeal from Criminal Court, Jefferson County; M. Frank Cahalan Judge.

Walter Fulton was convicted of receiving stolen goods, and he appeals. Affirmed.

Harsh, Beddow & Fitts, of Birmingham, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin Asst. Atty. Gen., for the State.

THOMAS J.

The defendant was convicted on an indictment charging him with buying, receiving, concealing, or aiding in concealing one diamond shirt stud, the property of John H. Lewis, knowing it was stolen, and not having the intent to restore it to the owner. At the conclusion of the evidence in the case, the defendant requested in writing the general affirmative charge in his favor, which the trial court refused to give. Its action in this particular is the sole question presented for our consideration, except the motion to establish the bill of exceptions, which must be and is granted, since the proof is without conflict that the bill of exceptions tendered the trial judge was correct in all particulars, and that he refused to approve it only because his term of office expired before it was tendered him for signature, which was within the time required by law.

In a criminal case, the court should never grant the affirmative charge for the defendant when the evidence is of such a character as to overcome, prima facie, the presumption of defendant's innocence. Jones v. State, 90 Ala 630, 8 So. 383, 24 Am.St.Rep. 850.

To establish the crime, under section 7329 of the Code, with which the defendant is here charged, it was necessary, of course, to show: (1) That the property alleged to have been bought, received, or concealed by defendant was in fact stolen property; (2) that defendant either bought it received it, concealed it, or aided in concealing it; (3) that he did so knowing at the time he either bought it, received it, concealed it, or aided in concealing it that it was stolen; (4) and that he did not have the intent to restore it to the owner. Oddo v. State, 152 Ala. 51, 44 So. 646; Booker v. State, 151 Ala. 98, 44 So. 56; Anderson v. State, 130 Ala. 126, 30 So. 375; Sellers v. State, 49 Ala. 357; Holt v. State, 86 Ala. 599, 5 So. 793.

In this case we are of opinion, after a careful review, that there is evidence tending to support, by fair and reasonable inferences to be drawn from it, every material ingredient of the offense, and that the trial court would not have been justified in giving the affirmative charge for defendant. Defendant admits that he bought the property, but denies that he knew it was stolen. It seems to be the main contention that the evidence is not sufficient to warrant a submission of this question to the jury. Says Judge Stone: "Knowledge of the theft *** [on the part of one charged with buying or concealing stolen property] can rarely be the subject of direct proof. Like most other facts, it may be inferred from other sufficient facts and circumstances. In criminal trials, the jury are charged with the ascertainment of the facts, and, in doing so, are permitted to draw all reasonable and satisfactory inferences." Collins v. State, 33 Ala. 437, 73 Am.Dec. 426. Says Judge Brickell: "The guilty knowledge, which is an essential element of the offense, is rarely the subject of direct and positive proof. It is inferred from circumstances that are as various as the shapes crime assumes. *** It is the province of the jury to draw the inferences from the facts in evidence, and it must be clear and indisputable that no reasonable inference can be drawn from them, before the court should deny to them the right of determining the inferences of which the facts are capable." Adams v. State, 52 Ala. 381.

In this case, the evidence for the state tends to show that Jesse and Herbert Allison stole the diamond stud in question from the owner, J.H. Lewis, in Birmingham, while he was under the influence of intoxicants or drugs administered by them, or which they induced him to drink; that they later sold the diamond stud, of the value of about $200, to defendant for $40, and left for Nashville, where, a short time after, they were arrested and turned over to Birmingham officers, to whom they stated that they had, before leaving Birmingham, sold the diamond stud to defendant. Two of such officers went together to see defendant about it. They both testify, in substance, that they told defendant of the arrest and bringing back from Nashville of the Allison boys, who were then in jail in Birmingham, and that they (the Allison boys) claimed that they had sold the diamond stud to defendant which the officers then demanded that he turn over to them; that the defendant thereupon denied having gotten a diamond stud from the Allison boys, whereupon the officers required him to go to the jail with them and confront the Allison boys. The two officers differ slightly as to what was said on reaching the jail. One says that he (the officer) asked Allison if he sold defendant a diamond stud, and upon his reply that he had done so, defendant admitted it, but said he had disposed of it to a drummer on the same night he bought it, and could not therefore produce it; the other officer testified that on reaching the jail the defendant asked Allison, "Did you tell these officers you had sold me a diamond ring?" to which Allison replied, "No, I told them I sold you a diamond stud." Defendant then said, "Yes; that is true and correct. You did sell me a diamond stud, but you have never sold me a diamond ring. I understood them to say 'ring' "--and the defendant further stated that he had, on the same night he bought it, sold the stud to a drummer, and did not know where it could be located. The defendant, in his statement, claims that when the officers mentioned the matter to him they said it was a diamond ring that the Allison boys claimed they had sold him, and that what he denied was that he had bought a diamond ring...