Leverett v. State

• Decision Date: 09 May 1922
• Docket Number: 3 Div. 399.
• Citation: 93 So. 347,18 Ala.App. 578
• Parties: LEVERETT v. STATE.
• Court: Alabama Court of Appeals

93 So. 347

18 Ala.App. 578

LEVERETT v. STATE.

3 Div. 399.

Court of Appeals of Alabama

May 9, 1922

Rehearing Denied June 13, 1922.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

G. D Leverett was convicted of grand larceny and receiving stolen property, and he appeals. Reversed and remanded.

Ludlow Elmore, J. S. Parrish, and T. E. Martin all of Montgomery, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field Asst. Atty. Gen., for the State.

SAMFORD J.

The defendant moved to quash the indictment because there was no division of the circuit court of Montgomery county in accordance with an act of the Legislature, approved September 25, 1915 (Acts 1915, p. 813). It is insisted in appellant's brief that this should work a reversal of the judgment, but there is no judgment of the court on this motion, appearing in the record, and for that reason is not reviewable. Wise v. State, 11 Ala. App. 72, 66 So. 128.

The ownership of the property alleged to have been stolen was properly laid in the Western Railroad. Vaughn v. State, 17 Ala. App. 35, 81 So. 417. To prove this ownership or right to possession, which in a larceny case amounts to the same thing, the state had a right to prove by the checking clerks of the railway company that from a waybill they checked certain tobacco from one car into another as going to show the possession of the railway company to the property so checked, and afterwards found in the possession of defendant. Of course, if it should afterwards appear that this property did not come to the possession of defendant, such testimony would not be relevant, and it would be the duty of the court to exclude it, but such would not be the case here, as upon the whole evidence adduced it was for the jury to say whether the property had been so identified.

Upon the admissibility of this testimony it is urgently insisted that the court erred in permitting the witnesses to testify from the waybills and the check marks made there by themselves; the witnesses stating that they had no independent recollection of the transaction except as shown by the waybills and their check marks on them, but that they had made the check marks, indicating that certain goods had been received in a certain car, and marked in a certain way, by which they could be identified. When the witness took the waybill describing certain articles, and by it checked the freight from the car and placed checks or marks on the bill, indicating the correctness or incorrectness of the count, he thereby made it his memorandum, and when properly authenticated as such and as to its correctness when made and at the time of trial, was admissible in evidence. Floyd v. Pugh, 201 Ala. 29, 77 So. 323; Acklen's Ex'r v. Hickman, 63 Ala. 494, 35 Am. Rep. 54. And, knowing its meaning, and it being ambiguous, he could explain the symbols and marks used in the memorandum so as to render it intelligible. 6 Michie's Digest, 411, § 345; 13 Michie's Digest, 1062, § 243(11). The court therefore, on the facts as they appear in this record, properly admitted the waybills in evidence, and did not err in overruling the defendant's motion to exclude the testimony of the check clerks on this question, as the testimony of the witness, coupled with the waybills, were equivalent to a present, positive statement of the witnesses, affirming the truth of the memorandum. 1 Greenleaf, Ev. §§ 436, 437.

From this testimony, together with the other testimony, the jury could draw the conclusion that the tobacco described in the indictment was in the possession of the Western Railway, and that it was stolen from one of its cars while in Montgomery county, Ala., and that it was about June 14th. Upon the same principle the testimony and memorandum of Kent, the seal clerk, was admissible.

The valuation of the tobacco by the witness Moore, if error, was afterwards rendered harmless by the testimony of other witnesses and by the defendant himself, who testified to a valuation largely in excess of the amount necessary to make the crime a felony.

It was error for the court to have allowed the witness Spear to testify that he went to Winston-Salem, N. C., and got the original waybills and got the property "matched" by those bills. This was a conclusion of the witness based upon hearsay. The original waybills had not been identified or authenticated by the proper agent of the company, nor did Spear know they were original waybills, except as he may have been informed by others. But the fact of the original waybills was not necessary to the state's case. The possession of the goods, as carrier, had already been proven in the Western Railway by the testimony of the check clerk and the waybills from which they checked the goods, and the subsequent identification depended upon them. If the goods were in the possession of the Western Railway when put into one of its cars and sealed, and when the car was again checked, shortly afterwards, the goods were gone, and shortly thereafter goods of the same kind are found and in the same marks or of the same kind, with signs showing the obliteration of the marks, it would then be for the jury to say whether they were the same goods, and those stolen. If a witness has seen an article and observed it, if subsequently it is shown him, he may say, if he knows, this is the same article, but, if his knowledge of the article is confined to information obtained from descriptions made by others, if he says "this is the article," such statement is a conclusion, based on hearsay and is incompetent. Chilton v. State, 105 Ala. 98, 16 So. 797; 4 Michie's Digest, 206, § 285.

Facts having been testified to from which the jury could conclude that the larceny had been committed, and the state having introduced evidence describing the goods, and goods themselves being in evidence of similar kind and similar marks, or on which were signs showing where marks had been obliterated, it was a jury question to say as to the corpus delicti and the identity of the goods, and therefore, a proper predicate having been laid as to its voluntary character, it was proper to prove the admissions of the defendant relative to his possession, as going to show that possession, the recent unexplained possession of stolen goods being presumptive of defendant's guilt as to the larceny count. Taylor v. State, 42 Ala. 529; Maynard v. State, 46 Ala. 85.

There was some testimony by the witness Spear to the effect that he had obtained some of the tobacco in evidence from one Dean and others. This would have been error but for the fact that Dean's possession was afterwards shown to have been obtained from defendant. The state cannot prove its entire case at once and by the same witness. It is sufficient if when all the facts and circumstances are proven they each are connected and tend to connect the defendant with the crime. If not, such testimony should be excluded. In this case a large quantity of tobacco was stolen from the Western Railway. The officers and agents of the company, in searching for the stolen property, went to many places and gathered in tobacco of similar description, and brought it into court for identification. This tobacco was all traced to the recent possession of the defendant, and as to that part which the jury, on the evidence, should find was the tobacco described in the indictment, it was incumbent on the defendant to explain his possession consistent with honesty, or rest under the presumption that he had stolen it.

The objection of the defendant to the introduction of the tobacco in evidence was directed to all of the tobacco, some of which, having been identified as the stolen goods, was competent. Piano v. State, 161 Ala. 88, 49 So. 803.

It was not error for the court to permit the state to show that one McArdle was employed as a switchman in the yards of the Western Railway from which the goods were stolen, at the time they were stolen; that he had no other business; that he rented a barn from witness on the outskirts of town and near witness' house; that he stored a large quantity of tobacco in the barn in the nighttime; that a short time afterwards defendant came in an automobile and took the tobacco away; that defendant told witness' wife to burn the strips that came off the boxes containing marks, etc.-all this tending to prove that McArdle was either a conspirator with defendant in the larceny, or that he received the tobacco with a guilty knowledge. In fact, facts having been shown tending to prove a conspiracy between defendant and McArdle, anything said and done by either in consummation of the common purpose during the pendency of the conspiracy would be admissible against either, whether the other was present or not. The rule as it appears in De Bardeleben v. State, 16 Ala. App. 367, 368 (4, 5), 77 So. 979 is misleading. In that case the statements spoken of were in fact made after the consummation of the conspiracy and were so dealt with, and the opinion in that case should read:

" Statements made after the consummation of the conspiracy, as to measures taken in the execution or furtherance of the common purpose, are not revelant as such as against any conspirators except those by whom or in whose presence such statements were made"-the obvious reason being that statements made, or acts done, during the pendency of the conspiracy are a part of the res gestæ and when made afterwards they are not. Durden v. State (Ala. App.) 93 So. 342 (4 Div. 761); McAnally v. State, 74 Ala. 9; Johnson v. State, 87 Ala. 39, 6 So. 400; Hunter v. State, 112 Ala. 77, 21 So. 65.

Therefore the acts and declarations of McArdle long...