Milam v. State

• Decision Date: 10 October 1940
• Docket Number: 7 Div. 637.
• Citation: 240 Ala. 314,198 So. 863
• Parties: MILAM v. STATE.
• Court: Alabama Supreme Court

198 So. 863

240 Ala. 314

MILAM v. STATE.

7 Div. 637.

Supreme Court of Alabama

October 10, 1940

Rehearing Denied Dec. 12, 1940.

Certiorari to the Court of Appeals.

Petition of the State of Alabama, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Milam v. State, 198 So. 860, reversing a conviction for grand larceny and buying, receiving or concealing stolen property.

Writ denied.

THOMAS J., dissenting in part.

Thos S. Lawson, Atty. Gen., and Prime F. Osborn, Asst. Atty. Gen for petitioner.

Pruet & Glass, of Ashland, opposed.

THOMAS Justice.

The decision of the Court of Appeals to which the Attorney General's petition for certiorari is directed is "the holding that there was a variance in the indictment and the proof."

The indictment is in two counts, that the defendant "feloniously took and carried away one No. 64 1/2 Marcy-Ball Mill, of the value of $1,500.00, the personal property of Martin Jenkins Norrell;" and that the defendant "did buy, receive, conceal, or aid in concealing, one No. 64 1/2 Marcy-Ball Mill, of the value of $1,500.00, the personal property of Martin Jenkins Norrell, knowing it to have been stolen, and not having the intent to restore it to the owner, against the peace and dignity of the State of Alabama."

The Code form of indictments in such case was employed. The trial was had under the evidence on both counts and the verdict was, "We, the jury, find the defendant guilty as charged in the 1st and 2nd counts of the indictment, and we find the value of the property to be $46.67." The judgment responded thereto. Michie's Code, §§ 4905 and 4912.

The offenses of larceny and of buying, receiving and concealing stolen property are punishable alike under the statute. Booker v. State, 151 Ala. 97, 44 So. 56.

The stolen property described in the indictment was destroyed in Clay County by the use of dynamite, removed some distance from its base and parts thereof carried away by truck into Calhoun County, where it was sold for more than $25 as scrap iron. All done with a felonious intent. Thus the offenses charged were ambulatory under our decisions.

The Court of Appeals rests its judgment upon the following statement of facts and law:

"The indictment charged the defendant with the larceny of one No. 64 1/2 Marcy-Ball Mill of the value of fifteen hundred dollars, said charge being a particular and precise averment, the State was under the burden, as in all criminal cases, to establish the corpus delicti by competent and sufficient proof. That is to say, in this case, necessary to a conviction, the State was under the burden and was required to offer sufficient legal testimony to show that the defendant did feloniously take and carry away the identical personal property as alleged in the indictment, the rock mill in question.

"The evidence in the case tended to show that the property alleged to have been stolen weighed about 20,000 pounds; that it was, and still is, situated in Clay County, at or near a dilapidated and abandoned graphite plant."

The Court of Appeals further said:

" * * * if said person or persons, after such injury to said mill, feloniously took and carried away any part of scrap iron, etc., such person or persons could have been held to answer a charge either of grand or petit larceny according to the value of the property involved.

"Under the evidence before the grand jury of the county, said grand jury returned the indictment, supra. The State having thus elected to prosecute, the person accused in said indictment was called upon to defend only the specific charge therein contained. Allegation and proof of offense must correspond, and a material variance in the allegations and proof is fatal to a conviction. * * *

"In this case no such proof was had. Proof of depredations upon and injury to the property, as stated above, will not suffice."

At the conclusion of the State's case, the record shows that defendant's counsel moved to exclude the testimony by the State on the ground that there was variance between the allegations of the indictment and each count of the indictment and the proof. Whereupon the court said: "In view of the fact that the State has no appeal and you have no authorities in point I am going to resolve my doubts in favor of the State and overrule the motion." Defendant's counsel duly reserved an exception.

The Court of Appeals does not discuss in detail the second count of the indictment, and of this the Attorney General says:

"The evidence adduced on the trial of this cause shows uncontroverted testimony that the defendant had in his possession and sold many hundreds of pounds of scrap iron which was, without question, determined to be parts of the particular ball mill mentioned in the indictment. * * * The mill was shown to have been moved some 100 yards from its original resting place into the nearby woods and that it had been dynamited and the scrap iron, or parts therefrom, removed and sold. * * *

"As has been stated, the property which the defendant had in his possession and which he sold to various dealers in scrap iron was very definitely proven to be stolen property. * * *

The insistence of a variance under both counts was overruled and that ruling reversed by the Court of Appeals.

Both counts of the indictment were sufficient to inform the defendant of the criminal charges against which he was called upon to defend himself in the Circuit Court of Calhoun County. The corpus delicti of the removal of the mill from its base with a felonious intent, its destruction and asportation from Clay to and into Calhoun County was with the same intent, as shown by the State's evidence, within the requirements of law that obtain. Pfister v. State, 84 Ala. 432, 4 So. 395.

We may remark as to the proof of larceny, under our decisions and statutes, that such offense is based on the fact that it is a civil trespass on the possession of another as to his personal property done with a felonious intent. Larceny has been defined by this court in Edmonds v. State, 70 Ala. 8, 45 Am.Rep. 67, as follows: "The usual definition of 'larceny' is, 'the felonious taking and carrying away of the personal goods of another.' 4 Black. Com. 229. It is defined in Roscoe's Criminal Evidence, as 'the wrongful taking possession of the goods of another, with intent to deprive the owner of his property in them.'--Ib. 622. It is a well-settled rule, liable to some few exceptions, perhaps, that every larceny necessarily involves a trespass, and that there can be no trespass, unless there is an actual or constructive taking of possession; and this possession must be entire and absolute.--Roscoe's Cr.Ev. 623-24; 3 Greenl.Ev. § 154. There must not only be such a caption as to constitute possession of, or dominion over the property, for an appreciable moment of time, but also an asportation, or carrying away, which may be accomplished by any removal of the property or goods from their original status, such as would constitute a complete severance from the possession of the owner. 1 Greenl.Ev. § 154; Roscoe's Cr.Ev. p. 625. * * *"

The statutory definition of the buying, receiving and concealing stolen property is contained in Michie's Code, § 4912. The construction thereof (as to such receipt or concealment) is that "guilty knowledge may be inferred from facts and circumstances, in the absence of proof of actual knowledge. Like most facts, it may be inferred from other sufficient facts and circumstances, * * *." Vacalis v. State, 204 Ala. 345, 86 So. 92. Circumstantial evidence may be sufficient to establish the corpus delicti. James v. State, 8 Ala.App. 255, 62 So. 897. The defendant must be shown to have had control over the property for an appreciable moment of time. The statute makes the person who conceals or aids the thief in the concealment of stolen property equally guilty with him who first feloniously takes the property. Booker v. State, 151 Ala. 97, 44 So. 56.

The question of venue is defined by the several provisions of Chapter 172 of Michie's Code, §§ 4890-4898. It has been declared by this court that if the acts, requisite to the consummation of the offense, occurred in two or more counties, the jurisdiction is in either county under the statute. Prestwood v. State, 87 Ala. 147, 6 So. 392; Code, § 4894.

It is necessary that we further consider the venue of the indictment as set forth in the two counts and the evidence in support thereof charging larceny and receiving stolen property. The provisions of the Constitution, §§ VI, and 143; and of the statutes, Code, §§ 3797, 4535, 4890, et seq., as to venire in criminal cases, and the distinction observed in this court in a proper case between jurisdiction of the subject-matter and the person are to be considered. Phillips v. Morrow, 213 Ala. 139, 104 So. 260, 40 A.L.R. 285.

It is clear that §§ 4897, 4898 of the Code, and constructions thereof (Kidd v. State, 83 Ala. 58, 3 So. 442; Prestwood v. State, 87 So. 147, 6 So. 392; Whizenant v. State, 71 Ala. 383; Thomas v. State, 114 Ala. 31, 21 So. 784; Bryant v. State, 116 Ala. 445, 23 So. 40), authorized the indictment and trial in Calhoun County Circuit Court as that county acquired jurisdiction of a material part of the subject-matter (the mill) under the two counts of the indictment.

The defendant's counsel challenged the authority and jurisdiction of the Calhoun County Circuit Court under the evidence set forth. Whizenant v. State, supra. Under a long line of decisions, the counties of Clay and Calhoun had jurisdiction of the subject-matter. So, also, the counties through which the transporting guilty agents and trucks passed from the point of the...