Mitchell v. State, 3 Div. 795.

• Decision Date: 08 February 1938
• Docket Number: 3 Div. 795.
• Parties: MITCHELL v. STATE.
• Court: Alabama Court of Appeals

180 So. 119

28 Ala.App. 119

MITCHELL v. STATE.

3 Div. 795.

Court of Appeals of Alabama

February 8, 1938

Rehearing Denied March 8, 1938.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

H. J Mitchell was convicted of grand larceny and receiving stolen property, and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Mitchell v. State (3 Div 255) 180 So. 123.

T. E. Martin and Hill, Hill, Whiting & Rives, all of Montgomery, for appellant.

A. A. Carmichael, Atty. Gen., and B. W. Simmons, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

The indictment charged the defendant with the commission of a felony. In the first count it was charged that he feloniously took and carried away one ton of cotton seed, of the value of $50, the personal property of K. T. McLemore. The second count charged that he did buy, receive, conceal, or aid in concealing, one ton of cotton seed, of the value of $50, the personal property of K. T. McLemore, knowing it was stolen and not having the intent to restore it to the owner, etc.

The trial in the lower court resulted in the conviction of the defendant under a general verdict of "guilty as charged in the indictment"; returned by the jury.

On the trial, the State's case rested principally upon the testimony of admitted accomplices; it therefore became necessary that other evidence tending to connect the defendant with the commission of the offense should be adduced in corroboration of that given by the accomplices. Under the statute, if such corroboratory evidence merely tended to show the commission of the offense or the circumstances thereof, it would not be sufficient to meet the rule as to the burden resting upon the prosecution in this connection. Code 1923, § 5635. The trial court so charged the jury.

Upon the theory that there was no evidence, other than that of the accomplices, tending to connect the defendant with the commission of the offense, the defendant requested charge 1, which was the general affirmative charge. The court refused this charge, and as a result the appellant insists that reversible error was committed. We do not so conclude. We are of the opinion there was some evidence adduced upon the trial which came within the stated rule. The question as to whether there was evidence on the given point was one of law for the court to determine. Its weight, probative force, and sufficiency rested with the jury. For this reason we may not put the court in error in refusing said charge.

Charge 8 was properly refused as not being predicated upon the consideration of all the evidence.

Charge 10, refused to defendant, was predicated upon the consideration of the evidence, and should have been given. The charge has had the approval of the appellate courts of this State for many years. Arrington v. State, 24 Ala.App. 233, 133 So. 592, and cases cited. We note the intimation of appellant's counsel, in brief, that, "the court evidently denied this charge because the word 'innocence' was spelled incorrectly; for the court underscored that word in the charge." As the charge appears in the record, the word "innocence" is spelled "innocense," using an "s" instead of the last "c" in the word. The court would not be justified, or sustained, in refusing the charge, for this manifestly clerical error, for the sense of the charge is in no manner obscured, and certainly any person reading the charge would experience no difficulty in ascertaining its meaning and in all probability would not detect the defect contained therein. "Before an objection because of false grammar, incorrect spelling, or mere clerical errors [even as to an indictment], is entertained, the court should be satisfied of the tendency of the error to mislead, or to leave in doubt as to the meaning a person of common understanding, reading, not for the purpose of finding defects, but to ascertain what is intended to be charged." Grant v. State, 55 Ala. 201. The same rule applies as to special written charges or instructions. Except as to the small clerical error above discussed the charge was good, and, as stated above, the court should have given it. Witt v. State, 5 Ala.App. 137, 59 So. 715; Stallworth v. State, 155 Ala. 14, 46 So. 518; Sanders v. State, 2 Ala.App. 13, 19, 56 So. 69; Holland v. State, 11 Ala.App. 134, 66 So. 126.

Charge 13 was properly refused because of the use of the word "supposition." Smith v. State, 197 Ala. 193, 202, 72 So. 316, 320. In the Smith Case, supra, the court in discussing this identical charge said: "The charge was properly refused, for the use of the word 'supposition.' All cases in this state, holding that the refusal of such a charge is erroneous, are hereby overruled." See, also, Terry v. State, 226 Ala. 685, 148 So. 159; Gurley v. State, 216 Ala. 342, 113 So. 391.

It was not permissible, under the elementary rules of evidence, for the State to undertake to prove by its witness, Golly Green what Rogers Hampton knew about the cotton seed of K. T. McLemore. The court should have sustained the objection to the unauthorized question propounded by the solicitor to said witness, to wit: "He (referring to Rogers Hampton) knew then Mr. McLemore had some cotton seed?" Nor was the answer of the witness, "Yes sir," permissible. A witness may not be allowed to testify as to what some one else may know. Bailey v. State, 107 Ala. 151, 18 So. 234, 235. In said case our Supreme Court, speaking through Chief Justice Brickell, said: "Evidence, to be competent, must consist of facts of which the witness has personal knowledge. If it be material to show a knowledge by a witness of a particular fact, it may be proper to inquire of him whether the fact was or was not known to him. Of his own mental status, he is competent to testify. The mental status--the cognition--of another, is not a fact; it is of necessity, matter of opinion or conclusion, dependent on the facts from which the opinion is formed or the conclusion drawn. The court below erred in permitting the witness to testify that the defendant knew at the time of the difficulty that Rowell had gone to Loachapoka to get a warrant for him. The facts on which the witness formed the opinion, or from which the conclusion was drawn, should have been stated. The resulting opinion or conclusion was matter lying within the exclusive province of the jury. Planters' & Merchants' Bank v. Borland, 5 Ala. [ 531] 546; Peake v. Stout, 8 Ala. 647; Whetstone v. Bank, 9 Ala. [ 875] 886; Walker v. Walker's...