Howard v. State

• Decision Date: 18 December 1895
• Citation: 108 Ala. 571,18 So. 813
• Parties: HOWARD v. STATE.
• Court: Alabama Supreme Court

18 So. 813

108 Ala. 571

HOWARD v. STATE.

Supreme Court of Alabama

December 18, 1895

Appeal from circuit court, Washington county; William S. Anderson Judge.

Francis A. Howard was convicted of stealing a sheep, and appeals. Reversed.

The appellant was tried under the following indictment: "The grand jury of said county charge that, before the finding of this indictment, Francis A. Howard feloniously took and carried away one sheep, the personal property of William G Pringle. The grand jury of said county charge that, before the finding of this indictment, Francis A. Howard, with intent to defraud, did mark or brand an unmarked sheep, or did alter or deface the mark or brand of such animal, the property of William G. Pringle,-against the peace and dignity of the state of Alabama." On the trial of the cause, as is shown by the bill of exceptions, the state introduced as a witness W. G. Pringle, who testified that he saw the defendant driving a flock of sheep, in which were some belonging to witness, some to the defendant, and some to other persons. The defendant then moved the court to require the state to elect on which count in the indictment it would proceed, whether for the larceny of the sheep, or for the alteration of the mark of a sheep. The court refused this motion, and the defendant duly excepted. Darby Odom, a witness for the state, testified that he had seen a sheep which belonged to W. G. Pringle feeding with other sheep near the house of the defendant, and that the mark of this sheep had been changed from Pringle's mark to the defendant's mark. He identified the sheep on account of its unusual appearance and peculiar spots. J. H. Stokes, one of the witnesses for the plaintiff, upon being asked if he had seen any of Pringle's sheep whose mark had been changed to the defendant's mark, testified "that he had seen several of Pringle's sheep whose mark had been changed from Pringle's mark to the defendant's." The defendant objected to the witness being allowed to testify as to the change of the mark of more than one sheep or of any other sheep than the one for which the defendant was being prosecuted, and moved to exclude this testimony of the witness Stokes. The court overruled the objection and motion, and to this ruling the defendant duly excepted. The defendant, as a witness in his own behalf, testified that he had never stolen or taken away any sheep belonging to W. G Pringle, or changed the mark of any sheep belonging to him; that he did not remember the circumstances mentioned by the witness Pringle, but that it was quite common for the sheep of different persons to mingle in the same flock when being herded or driven, since the sheep of different persons in the same neighborhood used the same range. This being substantially all the evidence, the defendant moved the court to exclude all of the testimony for the state. The court overruled this motion, and the defendant duly excepted to such ruling. The defendant then moved that the state be required to elect on which count in the indictment it would proceed, and the solicitor thereupon elected to proceed on the first count, for the larceny of the sheep which had been described by the witness Odom. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (H) "The court charges the jury that if they believe the evidence in this case, they must find the defendant not guilty." (E) "The jury must find the defendant not guilty if the conduct of said defendant, upon a reasonable hypothesis, is consistent with innocence." (1) "The court charges the jury that if they believe, from the evidence, that there is any likelihood of the defendant's innocence, they should acquit him." (2) "The court charges the jury that if the evidence satisfies them that it is merely likely that the defendant is guilty, they should acquit him." (4) "The court charges the jury that a mere likelihood of the defendant's innocence, founded on the evidence, is sufficient for his acquittal."

Clarke & Webb, for appellant.

Wm. C. Fitts, Atty. Gen., for the State.

BRICKELL C.J.

1. Irregularity in the organization or impaneling of a petit jury is waived, if objection because of it is not made before entering on the trial. If first presented on error, as in the present case, as cause for the reversal of a judgment of conviction, it comes too late. It is not necessary, therefore, to decide whether, in the organization of the petit jury, in the events which had occurred, there was regularity of irregularity. 1 Thomp. Trials, § 113.

2. Larceny of any one of the domestic animals enumerated in the statute, or the marking or branding of them with intent to defraud, or altering or defacing a mark or brand, is a felony. Cr. Code, §§ 3789-3831. The several offenses are of the same general nature, and belong to the same family of crimes, and the mode of trial, and nature and degree of punishment, are the same. Joining or including them in different counts of the same indictment is sanctioned by the rules of the common law as it prevails in this state, and by long usage. 1 Brick. Dig. p. 500, §§ 750, 751; 3 Brick. Dig. p. 281, § 474. The theory on which the joinder proceeds is that each count alleges a distinct, substantive offense; but, in practice, it is generally intended to meet the different phases in which the evidence may present the same offense. Adams v. State, 55 Ala. 143; Orr v. State (Ala.) 18 So. 142.

3. In Mayo v. State, 30 Ala. 32, it was said: "When two distinct felonies are charged in different counts, it is not a matter of legal right, pertaining to the accused, that the state should be compelled to elect for which one of the offenses it will prosecute; nor will the court compel such election, when the two counts are joined, in good faith, for the purpose of meeting a single offense. It is a practice sanctioned by common custom, and by the law, to charge a felony in different ways, in different counts of the indictment, so as to provide for the different phases which the evidence may present upon the trial;...