Martin v. State

• Decision Date: 19 April 1900
• Citation: 125 Ala. 64,28 So. 92
• Parties: MARTIN v. STATE.
• Court: Alabama Supreme Court

28 So. 92

125 Ala. 64

MARTIN v. STATE.

Supreme Court of Alabama

April 19, 1900

Appeal from Lawrence county court; J. C. Kempe, Judge.

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

The appellant in this case was tried under an indictment which charged that he "feloniously took and carried away one hundred and twenty pounds of meat, consisting of seven middlings, of the value of twelve dollars, the personal property of Sarah Moon," etc. When the case was called for trial, and the state's solicitor had announced ready the defendant made known to the court that the subp nas for all his witnesses had been duly returned executed, but that three of them had not appeared, and that, therefore, he was not ready for trial. On motion of the solicitor, the court required the defendant to make showing as to what he expected to prove by the absent witnesses. The defendant reduced the showing to writing, and the state admitted it, and he was ordered to go to trial. Thereupon the defendant offered to prove that said absent witnesses were in the county of the trial, and within the jurisdiction of the court, and moved that the case be continued until a subsequent day of the term, and asked for compulsory process of attachment to compel the attendance of the absent witnesses. The court refused to allow the defendant to make proof offered, and overruled his motion to continue the case, and denied his request for the compulsory process. To each of these rulings the defendant duly excepted. The state introduced as a witness one George Grimes, who testified that he lived in the house of Sarah Moon; that on the night of May 5, 1898 "Miss Moon lost seven middlings of meat, weighing about 120 pounds, out of her smoke house"; that on the morning of May 6th he went to the smoke house, and found the hinges cut or broken, and found tracks of two men around the door of the smoke house; that the meat was worth 10 cents a pound that on May 8th following he found some of this meat at the defendant's house. This witness then testified to his having put away the meat for Miss Moon in her smoke house and further testified that he knew by certain ways in which the meat was cut that the meat found at the house of the defendant was a part of the meat that had been taken from the smoke house. The meat was found at the house of the defendant while search was being made under an authority of a search warrant, by said witness together with other men. On the cross-examination of said witness, he testified that they found 55 pounds of meat at defendant's house, which was only about 3 1/2 middlings. The witness was then asked the following questions, and made thereto the following answers "Q. Do you know that all these seven middlings you spoke of were stolen? Ans. No; I can't say. Q. Do you know that any of Miss Moon's meat was stolen? Ans. No; I know that the meat was missing Saturday morning. Q. Do you know when it went? Ans. No; I know that it was in there Friday, and it was gone Saturday morning, and the door to the smoke house broken open, and the tracks of two men around there. Q. How do you know that it was in the smoke house Friday? Ans. I saw it there. Q. What time Friday did you see it? Ans. Friday morning. Q. How much meat was in the smoke house? Ans. Ten middlings, besides some other pieces. Q. Where was you on this Friday morning? Ans. I don't know. Q. Do you know whether Miss Moon sold any meat on this Friday evening or not? Ans. No; I don't know of my own knowledge. Q. She had been selling meat before that time, had she not? Ans. Yes. Q. She sold some after that time, did she not? Ans. Yes. Q. Can you tell the jury whether or not Miss Moon sold these seven middlings of meat on this Friday evening that you missed on Saturday morning? Ans. Of course, I don't know that she did not. Q. Can you state as a fact that there was meat stolen from Miss Moon? Ans. No, sir; but to the best of my knowledge there had been." The defendant then moved to exclude from the consideration of the jury all that the witness had said about finding the meat in the possession of the defendant, on the ground that it had not been shown that any meat had been stolen. The court overruled this motion and the defendant duly excepted. There were other witnesses introduced on the part of the state who testified to substantially the same facts as did this witness, and these other witnesses, upon being asked questions eliciting their knowledge as to whether or not the meat had been stolen, answered that they could not assert positively that the meat found at the house of the defendant was stolen. The defendant separately and severally moved to exclude the testimony of each of such witnesses, upon the ground that the corpus delicti had not been proved. The court overruled each of these motions, and the defendant separately excepted thereto. It was further shown by the state's evidence that the defendant left the county shortly after the commission of the crime, and remained away several months. The defendant introduced as a witness in his own behalf Josie Evans, who testified that she lived at the home of her father, one G. Knight; that her brother Buster Knight lived there also; that on the morning of May 6th, just a little before day, Buster Knight came into the kitchen where she was preparing breakfast, and had some meat in a sack, and upon her asking him about it, he stated to her that he was going to carry it over to the defendant's house, in order to sell it to him. This witness testified that she was a widow, her husband having been dead about four years. Upon this witness testifying that she had been away from the neighborhood where the crime was committed for some time, having been in Tennessee, the stated asked her, upon cross-examination, if it was not a fact that during her stay away she was not with the defendant all of the time, and had not had criminal relations with him during that time, and to this question the defendant objected, upon the ground that it called for illegal, immaterial, and irrelevant evidence. The court overruled the objection, and the defendant duly excepted. The witness answered in the negative. The other evidence for the defendant tended to show that he had not stolen the meat in question, and that he got the meat which was found in his house from Buster Knight and one McKleskey; that he bought the...