Leonard v. State
| Decision Date | 08 January 1952 |
| Docket Number | 4 Div. 170 |
| Citation | 36 Ala.App. 397,58 So.2d 138 |
| Parties | LEONARD v. STATE. |
| Court | Alabama Court of Appeals |
Jas. M. Prestwood and Baldwin & Baldwin, all of Andalusia, for appellant.
Si Garrett, Atty. Gen., and Thos. F. Parker, Asst. Atty. Gen., for the State.
The indictment against this appellant contained two counts. Count 1 charged larceny of three cows, and Count 2 charged appellant with buying, receiving, or concealing said cows, knowing them to have been stolen, etc.
The jury returned a general verdict of guilty.
The evidence presented by the State tended to show that three cows belonging to Mr. B. W. King were stolen on the night of 22 June 1949.
On the morning of 23 June Mr. King, after a search, found evidence indicating where some cows had been loaded in a truck. On the 25th of June he located one of his missing cows in the pasture of J. C. Clemmons.
Harry Adair testified that about 5:00 or 5:30 on the morning of 23 June 1949 the appellant, accompanied by a woman, brought three cows to the Ramsey Stockyards in Dothan. The appellant's truck was backed up to the cattle chute, and the cows were unloaded. The appellant then left and said he would be back later. Adair later had a boy tag the cows.
Mr. R. H. Ramsey, Jr., testified that the records of the stockyard show that on 23 June 1949 three cows were sold for L. L. Leonard, the appellant, and that one of these cows was sold to S. T. Jones.
R. H. Ramsey, Sr., testified that early in the afternoon on 23 June 1949 he gave a check covering the proceeds of the sale of three cows to a man who said he was L. L. Leonard. The check was made payable to L. L. Leonard. The man to whom he gave the check was accompanied by a woman. Mr. Ramsey did not personally know either the man or the woman. This check has never been presented to the bank for payment.
Mr. S. T. Jones testified that on June 23, 1949, he bought some cows from the Ramsey Stockyards in Dothan, and the next day some of these cows were sold to J. C. Clemmons.
J. C. Clemmons testified that on 24 June, 1949 he bought some cows out of the sale at which S. T. Jones sold cattle. These cows were later put in his pasture. The next day Mr. King came to his pasture and identified one of the cows bought at the Jones' sale as being his. After talking to the Sheriff Mr. Clemmons delivered this cow to Mr. King.
The appellant denied that he brought any cows to the Ramsey Stockyards on the day in question, or that he had at any time stolen any cows. The appellant further testified to facts tending to establish an alibi. The defense also presented several witnesses whose testimony was directed toward corroborating the appellant's alibi.
In rebuttal the State presented witness whose testimony tended to rebut and deny the appellant's alibi evidence.
During the examination of State's witness R. H. Ramsey, Jr., three sales tickets showing L. L. Leonard to be the owner of the cow, together with the weight and price, were introduced over defendant's objection. These tickets had been made out by the witness. (State's Exhibits 1, 2, and 3.) The grounds of defendant's objection was that no date was shown on the sales tickets. In response to a query by the court Mr. Ramsey testified that these tickets were for cows sold on 23 June 1949.
The sales tickets were material evidence in this case, and properly admitted.
The fact that the tickets were undated did not affect their competence as evidence. The weight to be accorded Mr. Ramsey's testimony that the tickets covered cows sold on 23 June 1949 was for the jury.
There was also introduced through this witness a pen tag of the stockyards showing that on 23 June 1949 'three head' were placed in pen 70 in the stockyard in the name of L. L. Leonard. The record does not disclose that any objection was actually interposed to this exhibit. (State's Exhibit No. 4).
During the examination of Mr. R. H. Ramsey, Sr., there was introduced over appellant's objection a carbon copy of the check given by Mr. Ramsey to some one purporting to be L. L. Leonard. This instrument bears date of 23 June 1949, and is in the sum of $200.62.
Mr. Ramsey, Sr., had previously testified that the check was in payment for three cows, and that it had never been presented to the bank for payment; and that the check was a permanent record kept at the stockyards.
The appellant objected to the introduction of the check on the ground that Mr. Ramsey did not know that the man to whom he gave the check was L. L. Leonard, and further that the check had not been presented to the bank for payment.
No merit attaches to either ground. Whether the man representing himself to Mr. Ramsey as L. L. Leonard was this appellant was for the jury.
Carbon copies are regarded as primary duplicate originals and may be introduced in evidence without accounting for the nonproduction of the original. See 20 Am.Jur. Sec. 427; also annotation beginning at page 1498 of 51 A.L.R.
The check was material as corroborating the other evidence introduced by the State as to the date that appellant brought three cows to the stockyards, and the date of the sale thereof. See Hosey v. Southport Petroleum Co. of Delaware, 244 Ala. 45, 12 So.2d 93. No error infected this ruling by the court.
On cross-examination it was developed that Mr. Ramsey had written all of the check except the signature, which was written by Mr. Ramsey's daughter, an office employee of the stockyard. Appellant's counsel thereupon moved to exclude the check from the evidence. No grounds were assigned in support of this motion.
Since the motion to exclude was general only, the trial court will not be placed in error in this instance. It is clearly inferable from the record that additional evidence was available to the State to have cured any defect arising from the introduction of this exhibit has such defects been pointed out to the court in support of the motion to exclude the exhibit. Louisville & Nashville R. Co. v. Scott, 232 Ala. 284, 167 So. 572; Head v. State, Ala.App., 44 So.2d 441, 445; Walden v. State, 34 Ala.App. 29, 36 So.2d 556; certiorari denied 251 Ala. 144, 36 So.2d 558; Walker v. Jones, 33 Ala.App. 348, 34 So.2d 608; certiorari denied 250 Ala. 396, 34 So.2d 614.
There was also introduced in evidence a bill of sale bearing the same date as the check, showing the purchase price to be the same amount as appears on the check, and also bearing a number in the upper righthand corner identical with the number on the check. This bill of sale covers the sale of three cows, with their respective weights and price. It was however unsigned, though Mr. Ramsey had testified that this bill of sale was made 'the same way the check was.'
The appellant objected to the admission of this...
To continue reading
Request your trial
-
Robinson v. State
...for the nonproduction of the original. See 20 Am.Jur., Sec. 427; also annotation beginning at page 1498 of 51 A.L.R.' Leonard v. State, 36 Ala.App. 397, 58 So.2d 138, 140, certiorari denied 257 Ala. 239, 58 So.2d 142. See also Wigmore on Evidence, 3d Ed., Vol. 4, Sec. 1233, p. 433, and Stat......
-
McGhee v. State, 6 Div. 834
...585, 50 So.2d 800; Strickland v. State, 269 Ala. 573; 114 So.2d 407; McGee v. State, 25 Ala.App. 232, 144 So. 112; Leonard v. State, 36 Ala.App. 397, 58 So.2d 138; Kennedy v. State, 39 Ala.App. 676, 107 So.2d During the redirect examination of Emanuel Snead, witness for defendant, the follo......
-
Hurst v. State
...answer to an improper question does not constitute reversible error. Stephens v. State, 250 Ala. 123, 33 So.2d 245; Leonard v. State, 36 Ala.App. 397, 58 So.2d 138. Photographs of the deceased and the Locus in quo are admissible in murder prosecutions when they shed light upon the character......
-
Cartlidge v. State
...to a question which is not answered, or is answered in the negative. McGhee v. State, 41 Ala.App. 699, 149 So.2d 1; Leonard v. State, 36 Ala.App. 397, 58 So.2d 138, cert. den., 257 Ala. 239, 58 So.2d 142; Haisten v. State, 50 Ala.App. 504, 280 So.2d 209. Appellant contends the trial court f......