Gardner v. State

• Decision Date: 22 June 1920
• Docket Number: 8 Div. 725.
• Citation: 87 So. 885,17 Ala.App. 589
• Parties: GARDNER v STATE.
• Court: Alabama Court of Appeals

87 So. 885

17 Ala.App. 589

GARDNER v STATE.

8 Div. 725.

Court of Appeals of Alabama

June 22, 1920

Rehearing Denied Nov. 9, 1920.

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Joe Gardner was convicted of grand larceny, and appeals. Affirmed.

Certiorari denied 87 So. 888.

Bricken P.J., dissenting.

C. L Price, of Albany, and Wert & Hutson, of Decatur, for appellant.

J. Q Smith, Atty. Gen., and Harwell Davis, Asst. Atty. Gen., for the State.

MERRITT, J.

The defendant was indicted, tried, and convicted upon a charge of grand larceny. The evidence was to the effect that Mr Johnson left home early one morning to attend a circus in Albany, Ala., and that shortly after leaving home he had occasion to make some change, and knew that he had a $10 bill, two $5 bills, some $1 bills, and other money in his right-hand pants pocket. He did not spend the money, and he also had some money in his left-hand pants pocket. He first missed the money out of his right pocket, on the show grounds, about 10 o'clock in the morning, about one minute and a half after the defendant had his hand in witness' left-hand pants pocket. Witness stated he knew that he had the money in his right-hand pocket just as he started to go down to the circus grounds, but could not say positively that he had it in his pocket when he got there; that he did not see the defendant take his money. The defendant testified that he lived in Birmingham and came to Albany the day of the circus, arriving there about 11 a. m., and that he did not go to the circus grounds until some time in the afternoon; that he did not get the money. The first insistence in counsel's brief is that the judgment fails to show that the "defendant appeared in open court" upon his arraignment. The judgment entry shows that the defendant appeared in his own proper person, and was arraigned, and this is a sufficient showing of this fact. Dix v. State, 147 Ala. 70, 41 So. 924; Cawley v. State, 133 Ala. 128 32 So. 227.

The defendant contends that the court erred in not giving the following written charge:

"I charge you, gentlemen of the jury, that although you may believe from the evidence that there is a possibility of defendant's guilt, but the law requires you to go further than the mere possibility or probability, for the law requires you to base your verdict from the evidence adduced from the witnesses upon the stand, and which evidence of said witness you must believe beyond all reasonable doubt and to a moral certainty that defendant is guilty as charged before you can possibly find the defendant guilty."

This charge, in effect, means that the jury must be convinced of the guilt of the defendant beyond a reasonable doubt and is fully covered by the oral and written given charges, and therefore its refusal constituted no error. Smith v. State, 165 Ala. 50, 51 So. 610; Underwood v. State, 179 Ala. 9, 60 So. 842.

The court permitted the state to introduce testimony showing that this defendant, during the day of the alleged larceny, which was circus day, was seen going around through the crowd, either stealing money from the pockets of various people, or that he was attempting to do so. An examination of the record shows that no objection was made to the questions eliciting this testimony, and, this being true, this court is not called upon to pass upon the relevancy of this testimony. Smith v. State, 16 Ala. App. 546, 79 So. 802; Downey v. State, 115 Ala. 108, 22 So. 479; Raymond v. State, 154 Ala. 1, 45 So. 895.

The serious insistence, however, of counsel for the defendant being that such testimony was irrelevant, leads us to declare again what is our conception of the law bearing on testimony of this character. The evidence in this case was entirely circumstantial. The witness Johnson, who lost the money, said that, while he was not positive, the defendant "looks just like the man who had his hand in my pocket, and in my best judgment he is the man." The court limited the admission of this testimony to show the intent of the defendant. As a general rule, evidence of a distinct similar offense is not receivable against a defendant, but the exception is that such evidence is admissible to show intent, to establish the identity of the defendant, "to make out the res gestæ, or to make out a chain of circumstantial evidence of guilt in respect to the act charged." Mason et al. v. State, 42 Ala. 532; Yarbrough v. State, 41 Ala. 405; McIntosh v. State, 140 Ala. 137, 37 So. 223; Mitchell v. State, 140 Ala. 118, 37 So. 76, 103 Am. St. Rep. 17; Gassenheimer v. State, 52 Ala. 313; Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782; Scott v. State, 150 Ala. 59, 43 So. 181.

Although the witness Johnson could not tell whether the money alleged to have been stolen was greenback, Federal Reserve notes, or silver certificates, all that was necessary for the state to show was that it was lawful money of the United States and the property of Mr. Johnson, and this was done. Walker v. State, 85 So. 305. Moreover, if there was a variance, it was not raised as required by Supreme Court rule 34 (175 Ala. xxi).

We do not think there is any merit in the objection made to the argument of the solicitor. In order to constitute reversible error, a statement by a solicitor in the argument of a case must be made as a fact, and the fact so stated must be unsupported by the evidence. This was the expression of an opinion or conclusion, and from the state's contention was supported by one phase of the evidence. Cross v. State, 68 Ala. 476; B. R., L. & P. Co. v. Gonzales, 183 Ala. 275, 61 So. 80, Ann. Cas. 1916A, 543; Tossie King v. State, 87 So. 701; Bridgeforth v. State, 16 Ala. App. 584, 80 So. 158.

The defendant insists that the court committed error in charging the jury (in effect) that, if they found beyond a reasonable doubt that Mr. Johnson had money in his pocket on the date it is alleged to have been taken, and that the defendant without the knowledge or consent of Mr. Johnson put his hand in one of his (Mr. Johnson's) pockets, and that afterwards Mr Johnson, If he had money in the other pocket, found it to be gone, the jury, if they saw proper, could infer from the fact, if a fact, that the defendant put his hand in the left-hand pocket of Mr. Johnson, that defendant was the person who took the money out of the right-hand pocket of Mr. Johnson, if in fact any money was taken out of Mr. Johnson's right-hand pocket. We do not agree with counsel for the defendant in their contention, but think this could have been a legitimate inference from the facts set out, and that it was well within the province of the jury to make such inference, if the evidence warranted it, and within the...