Huskey v. State

• Decision Date: 16 February 1901
• Parties: HUSKEY v. STATE.
• Court: Alabama Supreme Court

29 So. 838

129 Ala. 94

HUSKEY v. STATE.

Supreme Court of Alabama

February 16, 1901

Appeal from circuit court, Colbert county; E.B. Almon, Judge.

Bob Huskey was convicted of larceny, and appeals. Affirmed.

When the case was called for trial, the bill of exceptions recites that "defendant moved the court to grant him a continuance of the cause on the grounds that three of his witnesses were absent and unable to attend the court, viz E.P. Huskey, John Huskey and J.P. Stanfield; and defendant proved by the clerk that the witnesses had been duly summoned and offered to prove that they were sick in bed and unable to attend court. The court refused to grant a continuance, and put the state upon a written admission of what the defendant expected to prove by the absent witnesses, and forced the defendant into a trial of the case. To this ruling and action of the court the defendant duly excepted." After the witnesses were sworn, the defendant moved the court to put the witnesses under the rule by excluding them from the court room during the examination of the witnesses. The court refused to put one Sam Alexander, a witness sworn on behalf of the state, under the rule, and against the objection and exception of the defendant permitted the said witness, Sam Alexander, "to remain in the court room to hear the other witnesses testifying in the case and to aid the solicitor in the prosecution."

Lucy Burns, a witness for the state, testified that she owned the cow described in the indictment, and that said cow had been taken from her without her consent, and that she never authorized any one to dispose of the cow.

The state then introduced the testimony of several witnesses which tended to show that the defendant and one William Watson were seen driving along the public road two cows, one of which was a cow owned by Lucy Burns; that they drove the cows near the store of Sam Alexander, and defendant went to said store and offered to sell both the cows to said Alexander; that Alexander purchased the cows and paid the defendant $20 for them; and there was other evidence for the state tending to show that after the sale of the cows the defendant left the neighborhood in which he was living.

The evidence for the defendant tended to show that one of the cows which he sold to Alexander belonged to his mother, and that when he was preparing to take the cow to market for sale Reuben Watson came to him and said that he had bought a cow from Lucy Burns, and he wished to go with him, the defendant when he carried his mother's cow to market for sale; that defendant consented and he and Watson drove the cow belonging to defendant's mother and the cow which Watson said he purchased from Lucy Burns, near the store of Alexander, and while Watson watched the cows the defendant made the sale of them to Alexander and delivered them to him; that the defendant had no interest in the cow which Reuben Watson said he purchased from Lucy Burns and which was the cow described in the indictment, and after the sale he paid Reuben Watson five dollars, which they agreed among themselves was the price at which the cow was to be sold.

The defendant introduced in evidence the showings of the absent witnesses, which were admitted by the state, and these showings tended to corroborate the testimony of the other witnesses, who had testified in the case.

During the examination of one Will Thomas, a witness for the state he testified that he was a constable in the bear where the defendant lived, and that after the sale of the cow in question he, witness, "made a search for him and could not find him; that he inquired for defendant; that he had a warrant for defendant." The defendant objected to the statement of the witness that he had a warrant for the defendant, because the warrant was the best evidence of such fact. The court overruled this objection. To this ruling the defendant duly excepted.

The bill of exceptions recites that after the introduction of all the evidence in the case "the court announced that he would limit the argument of the counsel to one hour for state and one hour and thirty minutes for defendant. Defendant objected to this, and stated to the court that there were two attorneys to argue the case for the defense and that one hour and a half was not sufficient time for them to present the case to the jury. The court refused to allow defendant's attorneys more than one hour and a half for the argument of the case for the defendant, and the defendant duly excepted."

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: (1) "If the jury believe from the evidence that defendant had never seen the cow until the day before he and Watson drove it to Price station and that Reuben Watson told the defendant that it was his cow, that he had bought it from Lucy Burns, and that said Watson got the proceeds of the sale of the cow, then I charge you that your verdict should be for the defendant." (2) "If the jury have a reasonable doubt as to whether this defendant or Reuben Watson took the cow with the intent to steal it, then it is your duty to acquit the defendant." (3) "If the jury believe from the evidence that Watson was interested in the sale of the cow and received the money from the sale, they should look to this as evidence of the defendant's belief that...