Jackson v. State

• Decision Date: 11 January 1912
• Citation: 57 So. 594,5 Ala.App. 306
• Parties: JACKSON v. STATE.
• Court: Alabama Court of Appeals

57 So. 594

5 Ala.App. 306

JACKSON v. STATE.

Court of Appeals of Alabama

January 11, 1912

On Application for Rehearing, Jan. 30, 1912.

On Application for Rehearing.

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Daniel Jackson, alias, etc., was convicted of larceny, and he appeals. Affirmed.

Hill, Hill & Whiting and Phil H. Stern, for appellant.

R. C Brickell, Atty. Gen., for the State.

DE GRAFFENRIED, J.

The defendant and Lena Taylor were jointly indicted for the larceny of a $50 bill, the property of William Taylor. The defendant, upon his motion, was granted a severance, was tried and convicted by a jury of the offense, was sentenced to the penitentiary, and appeals.

It appears that Lena Taylor is the daughter of said William Taylor, and that she lived with her father and mother as a member of their family. It further appears that the father had more than $100 in cash, and that Lena Taylor had access to it. The testimony of Lena Taylor tends to show that the money was kept in her trunk, that she kept the key, was the custodian of the money, and, to use her language, "that she used some of it; that her father never objected to it."

If Lena was in fact the custodian of the money, she was simply, under the evidence in this case, in possession of it as a member of her father's family--in law his servant--and her possession of the key and her owner- ship of the trunk in which the money was kept in his house in no way affected her father's possession of the money. It is also evident that, if she at any time used any of the money, the use was for some legitimate purpose of herself or the family for which, as his child, she knew she possessed his consent. "It has often been decided, and is now settled law, that goods in the bare charge or custody of a servant are legally in the possession of the master, and the servant may be guilty of trespass and larceny by the fraudulent conversion of such goods to his own use." Crocheron v State, 86 Ala. 64, 5 So. 649, 11 Am. St. Rep. 18. The testimony, in the aspect most favorable to the defendant shows, as above stated, that the woman Lena Taylor had the bare charge or custody of the money, and, if she took the money described in the indictment animo furandi out of her trunk, she was guilty of larceny. Oxford v. State, 33 Ala. 416; Holbrook v. State, 107 Ala. 154, 18 So 109, 54 Am. St. Rep. 65.

It appears from the evidence offered on behalf of the state that the defendant and said Lena Taylor were criminally intimate with each other; that the defendant was informed by her of the existence and whereabouts of the money; that he decided to go to Savannah, Ga.; that he told Lena to get the money, asked her if she did not want to go to Savannah with him, and told her that, if she would get the money, she could go with him. Thereupon, the evidence tends to show, Lena Taylor took from the trunk something over $100, including the $50 bill described in the indictment, and she and the defendant left Montgomery county together, and together spent the money. The court, at the request of the defendant, charged the jury that, "unless you find from the evidence beyond all reasonable doubt and to a moral certainty that Dan Jackson conspired with Lena Taylor or aided or abetted or incited Lena Taylor to steal the money of William Taylor, then you cannot convict the defendant." In the above charge, the court, it seems to us, placed the defendant's case before the jury as favorably for the defendant as it could, under the facts, have been placed. 1 Mayfield's Dig. p. 216, § 47. As the undisputed facts show that Lena Taylor was the bare custodian of the money, the court was justified in making the oral explanation of charge four given at the request of the defendant, to which an exception was reserved by the defendant, and it was free from error in refusing the various written charges requested by the defendant covering the subject of embezzlement.

2. The evidence, without dispute, showed that defendant and Lena Taylor left Montgomery county together; that they went to Savannah together; and that they were together in Savannah at least a part of each night. There was therefore no error prejudicial to the defendant committed by the court in permitting the solicitor to ask the witness William Taylor the following question: "Did you find out that Daniel [meaning defendant] had gone away from there [meaning Ramer, Montgomery county]?" and in permitting the witness to answer the question in the affirmative.

3. On his cross-examination, the witness William Taylor testified, among other things, as follows: "That the defendant persuaded her to steal it; that she took it; that she had the power to go in there whenever she got ready; that he was low down enough to do it; that he had both his daughter and the defendant arrested; that he did not tell Mr. Walters on yesterday at the courthouse that the only reason he had the defendant arrested was because the defendant took his daughter, but that he did tell Mr. Walters that it would have been all right if the defendant had not been married; that he said that and that was what he hated about it; that he did tell Mr. Walters that he would never have had the defendant arrested if the defendant had not been a married man." It is therefore evident that when the defendant asked said witness the following question: "You got him arrested because he is married and went off with your daughter?" the question had already been answered when it was asked, and, if the question was otherwise unobjectionable, the court committed no error of which the defendant can complain in refusing to allow the witness to answer it.

4. Charge "B," requested by the defendant, was properly refused. The charge was in the following language: "If you find that the witness William Taylor has exhibited malice or ill will toward the defendant, Dan Jackson, you may reject his entire testimony, if you believe that said witness, on that account, is not worthy of belief." Malice and ill will entertained by a witness against a party to a cause may always be proven for the purpose of showing the bias of the witness so that the jury may say, under all the circumstances of the particular case, what, if any, weight shall be given to the testimony of such witness. Undoubtedly a jury has no right, however, to discard the entire testimony of a witness who, on account of bias or for any other reason, "is not worthy of belief" if they believe the witness swore truthfully when testifying as a witness in the case. In the present case the testimony of William Taylor was corroborated in some of its material parts, as to matters necessarily within his knowledge, by the testimony of the defendant himself, and in other material parts by the testimony of other witnesses, and, although the jury may have, because of his bias, believed that "he was not worthy of belief," yet, if the jury believed any material portion of the evidence of Dan Jackson, they had no right to reject it in its entirety. The above charge is materially different from the charge which the Supreme Court held to be proper in Hammond v. State, 147 Ala. 79, 41 So. 761. In the Hammond Case the charge requested was as follows: "If any of the state's witnesses have exhibited malice against the defendant or anger, or have testified to contradictory statements and thereby satisfied the jury that they have not testified truly, and are not worthy of belief, and the jury think their testimony on these accounts should be discarded, they may discard it altogether." The italicized portion of the above charge emphasizes what we have above said, and indicates wherein charge "B" requested in this case was vicious. A charge similar to the charge above quoted from the Hammond Case was approved in Burkett v. State, 154 Ala. 19, 45 So. 682, but as the charge discussed in the Burkett Case was, as above pointed out, materially different from the charge now under discussion, that case is without value as an authority on the question here presented.

5. It appears from this record that, after the finding of the indictment and before pleading to it, the defendant...