Johnson v. State

• Citation: 14 So. 627,100 Ala. 55
• Parties: JOHNSON v. STATE.
• Decision Date: 17 January 1894
• Court: Supreme Court of Alabama

14 So. 627

100 Ala. 55

JOHNSON v. STATE.

Supreme Court of Alabama

January 17, 1894

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Eugene Johnson was convicted of larceny, and appeals. Reversed.

The indictment alleged: "The grand jury of said county charge, that before the finding of this indictment, Eugene Johnson feloniously took and carried away two bushels of corn, part of an outstanding crop of corn, the property of Cornelia Merriwether," etc. The evidence introduced on the part of the state, tended to show, that within 12 months before the finding of the indictment, the defendant feloniously took and carried away five ears of corn from an outstanding crop of corn, growing on the land of Cornelia Merriwether. W. T. Merriwether, the husband of Cornelia Merriwether, testified, that he lived with his wife on the land on which the corn grew, and used the crop in support of his family; that the title to the land was in his wife; that he furnished the labor and teams to make the crop, and cultivated the land on which it was raised, and the crop of corn was his. The defendant objected to this testimony of W T. Merriwether, and duly excepted to his objection being overruled. Mrs. Merriwether, was introduced by the state, and testified, that the title to the land on which the corn alleged to have been stolen grew, was in her. This was all the evidence introduced touching the ownership of the crop. The defendant asked the court to charge the jury: (1) "If the jury believe the testimony, they must find the defendant not guilty;" (2) "if the jury find from the testimony, that the corn was the property of Mr Merriwether, they must find the defendant not guilty;" (3) "the mere fact that Mrs. Merriwether owned the land and lived on it with the husband who cultivated the land claimed the crop as his own and used it in the support of the family, without more, would not make the crop the property of the wife;" (4) "if the jury believe from the testimony, that the time that Merriwether rode to the defendant's house, or near his house and talked with him about the corn, was the last of August, or the first of September, and not the last of July, then they must discard altogether that part of the testimony of Merriwether relating to corn taken the morning that he was at the house of the defendant, or the day prior to that time, provided the jury also find that the corn, Wade Dillard testified he saw taken, was taken, if at all, on the last of July." The court charged the jury orally, that under the testimony the corn alleged to have been stolen was the property of Mrs. Merriwether. The defendant excepted to the giving of this charge, and to refusal to give the foregoing charges as requested by him. After the jury had been charged and retired to their room to consider the case, one of the jurors sent to the court a note in writing, as follows: "I, C. L. Doll, want to know whether it makes any difference, if the corn was taken in July or the latter part of August." The court wrote upon the note as follows: "If the corn was taken as alleged in the indictment, it makes no difference whether it was done in July or August," and returned it, thus indorsed, to the said Doll in the jury room, by the deputy sheriff. To this action of the court the defendant excepted.

Sayre & Pearson, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

HARALSON J.

1. When this case was here, on another appeal, the ownership of the corn alleged to have been stolen was laid in W. T. Merriwether, and on substantially the same evidence as that presented in this record, the court held that the ownership was improperly laid in him, but should have been laid in Mrs. Merriwether. Johnson v. State, 13 So. 377. We adhere to our former ruling, and hold that the ownership was properly laid in Mrs. Merriwether. The statement of Mr. Merriwether, that the corn was his, was the mere expression of an opinion, accompanied by a statement of the facts on which he based it, which show that the ownership of the land and the unsevered crop thereon, as a part of the land, was properly laid in Mrs. Merriwether.

2. There was no error, therefore, in refusing the three first charges requested by defendant, nor in giving the charge "that under the testimony, the corn alleged to have...