Kilgore v. State

• Decision Date: 03 April 1923
• Docket Number: 5 Div. 421.
• Citation: 19 Ala.App. 181,95 So. 906
• Parties: KILGORE v. STATE.
• Court: Alabama Court of Appeals

95 So. 906

19 Ala.App. 181

KILGORE v. STATE.

5 Div. 421.

Court of Appeals of Alabama

April 3, 1923

Appeal from Circuit Court, Chilton County; B. K. McMorris, Judge.

George Kilgore was convicted of grand larceny, and he appeals. Reversed and remanded.

Reynolds & Reynolds, of Clanton, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

The defendant was convicted of grand larceny; the property alleged to have been stolen was one Buick automobile of the value of $1,500, and the indictment contained the averment that it was the personal property of Ruth Gowan.

On the trial the state introduced testimony which tended to show that on the afternoon before the car was taken from the garage that night Dr. J. E. Gowan, husband of Ruth Gowan, put the car in the garage and locked it by means of the switch lock and also the transmission lock; and about 18 days after the car disappeared it was found in the possession of the defendant in the city of Americus, Ga.

The defendant testified as a witness in his own behalf, and admitted possession of the car in Americus, Ga., and also that he, with the assistance of another, one Oscar Giles took the car from the garage on the night alleged, and hid it in the woods some eight miles away, and afterwards drove the car to Americus, Ga., where the car was found, and the defendant apprehended and arrested by the sheriff of that county. Defendant, however, insisted and so testified, that the car was taken by him by and with the consent and at the request of Dr. J. E. Gowan, husband of the alleged injured party, under the following circumstances That Dr. Gowan called him into his office and stated to him that he had some trouble with the insurance company in which his car was insured in regard to the insurance company paying for some tires which had disappeared from his car some few days previous, and stated that he wanted the whole amount of the insurance, and proposed to the defendant that, if he would take the car and keep it in hiding for two weeks, to give him time to collect the insurance, he (defendant) could take the car and do as he pleased with it; that after the car was kept in hiding two weeks, as agreed, Dr. Gowan brought the keys to the office and gave them to defendant, and told him he was ready for defendant to take the car off; that it was agreed that defendant should change the characteristics of said automobile as much as possible, and should any one question the defendant's title Gowan would not own the car.

It was also shown without dispute that Dr. Gowan used the car regularly, and that his initials, "J. E. G.," were placed on the left side of the car.

During the trial of this case the solicitor, representing the state, stated: "We wish to introduce the car." Whereupon the defendant objected to the jury being carried from the courtroom to view the car, and objected to all proceedings had while the jury was out of the courtroom, and to the taking of the testimony of Ruth Gowan at a point on the street in the town of Clanton, near the courthouse. The court overruled the objection, and defendant excepted. The record shows:

That "thereupon, the court, the jury, the solicitor and the attorneys for the defendant and the defendant, the court officials, and a great number of spectators left the courtroom and proceeded to a point in the rear of the courthouse on the street in the town of Clanton where the car in question was parked, and thereupon the witness Ruth Gowan, continuing, testified as follows: I said that there was certain chalk marks on the top of the car. That is the chalk mark I described. I do not know whether it was on there when we got the car or not, but I saw it on there the Sunday it was taken-the same mark that is on there now. Dr. Gowan's initials were on the car right here (indicating), J. E. G. They were on the car before it was stolen. It is the same condition now as it was when I first saw it after it was stolen. There was the motor number, frame number, and license number by which I could identify the car when it was taken. I have seen the numbers before the car was taken; I know they were not erased; I know they were there. I ran into a wheelbarrow right there (indicating) a day or two before it was taken. The lock here locks the switch-you can't turn the switch to start the engine when that is locked-and when this (indicating) is locked you can't shift the gear. When the switch is locked you can't operate the car; double lock. The keys were hung up in my house that night; both of the keys; yes, sir. The last time I saw the car it was in the possession of Dr. Gowan. I saw him put it in the garage; the garage had an inside catch. Dr. Gowan drove the car at his will-never ask me anything about it. There was only one transmission key, but I believe there were two to the other. They were both on the ring in the house that night. Dr. Gowan drove the car at his will; never asked me about it; drove it the same as I did. The chalk mark place was right

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