Hawes v. State

Decision Date28 April 1927
Docket Number3 Div. 793
Citation112 So. 761,216 Ala. 151
PartiesHAWES v. STATE.
CourtAlabama Supreme Court

Certiorari to Court of Appeals.

Petition of J.C. Hawes for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Hawes v. State, 112 So. 759. Writ granted; reversed and remanded.

Sayre Gardner, and Brown, JJ., dissenting in part.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

SOMERVILLE J.

The defendant was indicted under three counts--the first, for larceny of an automobile; the second, for its embezzlement and the third, for larceny of $100 from the person of one P.L. Hudson. The state's case, briefly stated, was that Hudson, after being driven around by defendant in a Ford car bought the car from defendant for $100, which he then and there paid to him in cash; whereupon defendant, on the pretense of going to the courthouse to get the proper papers, and, promising to return shortly, drove the car off, and did not return at all, and was shortly afterwards found by the arresting officer with the car in his possession.

It thus appears that Hudson voluntarily parted, not only with the possession of the money he paid to defendant, but also with its ownership, which was unconditionally vested in defendant. Under these circumstances defendant could not be held guilty of larceny of the money. Ex parte Economu, 211 Ala. 237, 100 So. 85.

The verdict of guilty was general, as authorized by the trial court in its instructions to the jury, and it is impossible to determine from the record under what count or counts of the indictment the jury found defendant guilty. In this state of the case we see no escape from the conclusion that the trial court committed reversible error in refusing to instruct the jury, as duly requested by defendant, that they could not convict defendant under the third count for the larceny of the money. Brasher v. State, 21 Ala.App. 309, 107 So. 727; Dorsey v. State, 134 Ala. 553, 33 So. 350; Walling v. Fields, 209 Ala. 389, 96 So. 471.

When the question propounded to a witness is so general, or so broad in its scope, that a responsive answer may as well be irrelevant or illegal as otherwise, the question is properly excluded if objected to by the other party. Birmingham R., L. & P. Co. v. Barrett, 179 Ala. 274, 285-290, 60 So. 262, reviewing the cases.

But, when there is nothing on the face of the question, or in the statement of examining counsel, to show that the answer will be irrelevant or illegal, the opposing party has no right to have the question excluded, and the trial court's refusal to exclude is not error. Huckabee v. State, 168 Ala. 27, 53 So. 251; Forrester v. May, 3 Ala.App. 281, 284, 57 So. 64.

The rule then is clearly established that the trial court may either exclude such a question, or allow it to be answered, without error either way. And the result is necessarily that the objection may and must be made to irrelevant or illegal statements as they may appear in the course of the witness' narrative, pursuant to such general question. Forrester v. May, 3 Ala.App. 281, 284, 57 So. 64.

Under this principle, it must be held that the trial court erred in overruling defendant's objection to the illegal hearsay matter testified to by the witness Avant, in response to the general question, "Tell the jury...

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  • Morris v. Estes, 5:11-cv-01129-SLB-JEO
    • United States
    • U.S. District Court — Northern District of Alabama
    • 28 de março de 2014
    ...about a "joint" being found, i.e., "What else did you find in the car?," was not itself necessarily objectionable. See Hawes v. State, 112 So. 761, 762 (Ala. 1927) ("When there is nothing on the face of the question, or in the statement of examining counsel, to show that the answer will be ......
  • Cozart v. State, 8 Div. 934
    • United States
    • Alabama Court of Appeals
    • 20 de outubro de 1964
    ...a count be charged. out. Here there was no evidence to support counts 4 and 5. The refusal of charges 23 and 24 was error. Hawes v. State, 216 Ala. 151, 112 So. 761; Jones v. State, 236 Ala. 30, 182 So. 404; Gayden v. State, 38 Ala.App. App. 39, 80 So.2d 495 (aff'd 262 Ala. 468, 80 So.2d 50......
  • Jackson v. State, 3 Div. 880.
    • United States
    • Alabama Court of Appeals
    • 25 de fevereiro de 1947
    ... ... rule urged does not have application if, as in the instant ... case, the general affirmative was requested as to each count ... of the indictment. A contrary view would deprive the ... appellant of a substantial right of review. Jones v ... State, 236 Ala. 30, 182 So. 404; Hawes v ... State, 216 Ala. 151, 112 So. 761; Brasher v ... State, 21 Ala.App. 309, 107 So. 727 ... We pass ... now to a consideration of the question of whether or not the ... court erred in refusing the general affirmative charge as to ... the embezzlement count. The count is based on ... ...
  • Murchison v. State
    • United States
    • Alabama Court of Appeals
    • 11 de junho de 1946
    ...v. State, 107 Ala. 154, 18 So. 109, 54 Am.St.Rep. 65. It is urged in brief of counsel for appellant that the cases of Hawes v. State, 216 Ala. 151, 112 So. 761, Murchinson v. State, 30 Ala.App. 15, 199 So. 897, are in factual point and must control our decision favorably to the defendant. I......
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