Johnson v. State, 188

• Court: Alabama Court of Appeals
• Writing for the Court: THOMAS, J.
• Citation: 13 Ala.App. 193,68 So. 687
• Parties: JOHNSON v. STATE.
• Docket Number: 188
• Decision Date: 11 February 1915

68 So. 687

13 Ala.App. 193

JOHNSON
v.
STATE.

No. 188

Court of Appeals of Alabama

February 11, 1915

Rehearing Denied April 6, 1915

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

William Johnson was convicted of larceny, and he appeals. Affirmed.

Thomas, J., dissenting. [68 So. 688]

[13 Ala.App. 194] Warren S. Reese, William H. & J.R. Thomas, and J. Lamar Wiley, all of Montgomery, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

THOMAS, J.

The defendant, William Johnson, was charged with the larceny of "two heifers, animals of the cow kind, the personal property of Lula Rogers."

Lula Rogers, the alleged owner of the two heifers charged to have been stolen, testified as a witness for the state that she knew the defendant, William Johnson; that he lived on Mr. Mason's place, in Montgomery county, Ala.; that in February, 1914, she lost two heifers, not described, which she has never recovered; that the last time she saw them they were on defendant's premises; that she had a talk with him about the heifers when she went afterwards to look for them; and that he said be had not seen them. The state then introduced as a witness Ed Ledyard, who testified:

"That he had a bull yearling--not described--that was on Lula Rogers' [the last-mentioned witness] premises when she lost her cows in February, 1914; that his and Lula's were running together; that he never got back his after it was put in the pasture; and that it was missed the same time that Lula's was."

This evidence of these two witnesses was clearly insufficient to prove even the corpus delicti; since, for aught appearing, the heifers had not been stolen, but had merely strayed or wandered from home, and had not [13 Ala.App. 195] been found or recovered. Jeffries v. State, 7 Ala.App. 144, 62 So. 270; Sanders v. State, 167 Ala. 85, 52 So. 417, 28 L.R.A. (N.S.) 536; Thomas v. State, 109 Ala. 25, 19 So. 403; Orr v. State, 107 Ala. 35, 18 So. 142; Griggs v. State, 58 Ala. 425, 29 Am.Rep. 762. The most that can be said of it is that it shows that, if Lula Rogers' heifers were, as was alleged, stolen, the defendant had an opportunity of doing it.

These two witnesses, Ed Ledyard and Lula Rogers, also testified, each, as to a conversation had between the witness Ed and the defendant, Johnson, when they (Ed and Lula) were looking for the lost cows, each testifying, in substance, in this particular that Ed said to defendant that Shep Bargainer had told him (Ed) that defendant had taken the heifers and sold them to Aaron Manning, and that defendant replied, "Let's go over to Manning's, and if he says I sold them to him, I will pay for them," whereupon Ed said, "There is no use to go to see him, because Manning has already also told me you sold him the heifers," and that defendant then said, "We will go to see him, and if he tells me so, I will pay for them." Ed further testified that he (Ed) refused to go with defendant to see Manning, unless Shep Bargainer (the person who told him that defendant had sold the cows to Manning) would also go; that he and defendant thereupon went to see Bargainer, and Bargainer refused to go, but that Bargainer then stated in the presence of defendant that he (Bargainer) and defendant had taken the cows and the bull yearling, whereupon defendant said, "If I have taken the bull yearling, I am also willing to pay for it, but you come go with me to Manning;" that, when Bargainer would not go, defendant offered to go with witness to Manning, and, upon witness declining, defendant proceeded [13 Ala.App. 196] by himself. Defendant never paid for the cows, and a warrant was sued out for him and Bargainer. The latter pleaded guilty.

What Bargainer may have said to witness and defendant or what Manning may have said to witness, which was repeated to defendant, is no evidence of the truth of the matters stated by them, but is pure hearsay so far as concerns the commission of the crime and the guilt or innocence of defendant, and was admissible solely to show what defendant said and did when these statements charging him with crime were made or repeated to him. His words and conduct in the face of the charge are the only original evidence, so far as the testimony of the witnesses mentioned is concerned, against him. Can what he said and did, as testified to by them, be construed as a confession of the crime by him, or as in the...