Hendricks v. State, 2 Div. 783.
Decision Date | 16 November 1948 |
Docket Number | 2 Div. 783. |
Citation | 41 So.2d 420,34 Ala.App. 502 |
Parties | HENDRICKS v. STATE. |
Court | Alabama Court of Appeals |
Rehearing Denied Dec. 14, 1948.
Reversed and Remanded on Mandate June 21, 1949.
Thos. F. Seale, Jr., of Livingston, and Jas. S Coleman, Jr., of Eutaw, for appellant.
A A. Carmichael, Atty. Geen., and Hugh F. Culverhouse, Asst Atty. Geen., for the State.
The defendant below was indicted, tried and convicted on a charge of stealing a cow, the property of J. B. King.
One of the prime insistences on this appeal is that there is a failure in the proof to identify the cow, which the evidence tended to show the accused had in his possession, with the animal which Mr. King found to be missing.
It is a legal truism that proof of this fact constitutes a material link in the chain of evidence in cases of instant concern. Hopkins v. State, 25 Ala.App. 399, 147 So. 210.
The appellant rested his case when the State concluded its evidence in chief, and made a motion to exclude the evidence. This practice is approved in criminal cases. Underwood v. State, 33 Ala.App. 314, 33 So.2d 379; Wallace v. State, 16 Ala.App. 85, 75 So. 633.
The general affirmative charge was also tendered by the defendant and refused by the court.
Mr. King testified that on or about March 5, 1948, he missed a cow from a pen in his stockyard in the city of Eutaw, Alabama. In describing the cow he testified:
The evidence is silent as to whether or not he ever saw the animal after its disappearance from the pen.
David Peterson lived in the vicinity of the stockyard. He testified that on the day indicated above, at about six o'clock in the forenoon, he saw the defendant coming down the road near witness' home with a 'light cow' and that defendant 'turned and tied him up by some cord wood, and he left and went on up by the houses.' The witness stated further that he did not see the accused come out of the stockyard with the cow.
George Carter was also indicted for complicity in the alleged crime. This witness related the contents of two conversations which he claimed to have had with the appellant. The first of these was about eleven o'clock A.M. on Friday, March 5th. We quote from the record:
The second conversation was on the following Monday. Here the witness testified:
'A. I asked him about it, and he said, So far as the record discloses, the accused at no time told Carter that he (the accused) had gotten the cow from the stockyard.
On direct examination Carter answered this question in the affirmative: 'I believe you were also indicted by the grand jury involving this cow, is that correct?'
A very careful study of this comparatively short record discloses that we have herein detailed all the tendencies of the evidence which must form a basis for a decision on the question before us.
The Assistant Attorney General observes in brief:
The appellant's attorney seemed to have sensed the fact that the State had omitted to make proof of this material evidence. This is evinced by noting that he posed this point as a specific ground of his motion to exclude the evidence.
Whatever may have been in the minds of the parties, as to the actuality of the essential facts, could not have replaced nor supplied the necessity of making proof of the fact.
We are led to the...
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Carroll v. State
...evidence on the ground that it was insufficient to sustain a conviction. Wallace v. State, 16 Ala.App. 85, 75 So. 633; Hendricks v. State, 34 Ala.App. 502, 41 So.2d 420. The general affirmative charge was requested in behalf of the defendant, and a motion for a new trial was In approaching ......
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Edgil v. State
...the evidence. This practice or procedure is sanctioned in criminal cases. Wallace v. State, 16 Ala.App. 85, 75 So. 633; Hendricks v. State, 34 Ala.App. 502, 41 So.2d 420. At this time counsel included as a ground in his motion the insistence that the corpus delicti had not been proven. The ......
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Byrd v. State, 3 Div. 952
...review of the sufficiency of the evidence is also invited by defendant's motion to exclude all of the State's evidence. Hendricks v. State, 34 Ala.App. 502, 41 So.2d 420; Brooks v. State, 34 Ala.App. 275, 38 So.2d The State anchored the prosecution on circumstantial evidence. Stated succinc......
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