Moore v. State

• Decision Date: 17 December 1935
• Docket Number: 8 Div. 268
• Citation: Moore v. State, 26 Ala.App. 607, 164 So. 761 (Ala. App. 1935)
• Parties: MOORE v. STATE.
• Court: Alabama Court of Appeals

164 So. 761

26 Ala.App. 607

MOORE v. STATE.

8 Div. 268

Court of Appeals of Alabama

December 17, 1935

Appeal from Circuit Court, Colbert County; J. Fred Johnson, Jr. Judge.

Edmond alias Esmon, Moore, was convicted of buying, receiving, or concealing stolen property, and he appeals.

Reversed and remanded.

A.A Carmichael, Atty. Gen., for the State.

BRICKEN Presiding Judge.

The first count of the indictment in this case, charged this appellant with the offense of burglary of the dwelling house of Mrs. J.C. Taylor. The second count charged the offense of buying, receiving, or concealing, etc., stolen property consisting of numerous articles of value (properly enumerated) of the aggregate value of $72.95, the personal property of Mrs. J.C. Taylor, knowing that the designated goods were stolen, and not having the intent to restore the goods to the owner, etc.

The evidence for the state tended to establish the corpus delicti of each of the offenses charged in the indictment. This having been shown without dispute, the material and controlling question remaining was the alleged commission of the offense by the accused, or his participation therein, and connection in reference thereto.

The jury returned a verdict of guilty under the second count of the indictment, but found the defendant guilty of petit larceny only, and assessed a fine of $250. Failing to pay the fine and cost, or to confess judgment therefor, the court sentenced the defendant to hard labor for the county for a sufficient (and proper) term, to satisfy the fine and cost, and in addition thereto added three months' hard labor for the county. From the judgment of conviction, this appeal was taken.

The verdict of the jury operated as an acquittal of the accused as to two felonies originally charged in the indictment. Pending this appeal, the sentence aforesaid was suspended, and the bond of the appellant was fixed at $1,000, notwithstanding the conviction was for a misdemeanor only. So far as the record discloses, this appellant has been confined in the county jail since the day of the alleged commission of the offense. Excessive or prohibitive bail should never be required in a case of this character.

As stated, this appellant was convicted of the offense of buying, receiving, or concealing, etc., stolen property. In this case, by the verdict of the jury, a misdemeanor.

In order to sustain a charge of buying, receiving, concealing, or aiding in the concealment of stolen property, knowing that it was stolen, and not having the intent to restore the same to the owner, etc., it is necessary to show by the evidence, beyond a reasonable doubt and to a moral certainty: (1) That the goods in question had been feloniously taken and carried away, as charged in the indictment, by some one; (2) that the defendant bought, received, concealed, or aided in concealing these goods, knowing at the time that they were stolen; and (3) that he so bought, received, concealed, or aided in concealing these goods, knowing that they were stolen, and not having the intent to restore same to the owner. James v. State, 15 Ala.App. 569, 74 So. 395; Jeffries v. State, 7 Ala.App. 144, 62 So. 270; Thomas v. State, 109 Ala. 25, 19 So. 403; Sanders v. State, 167 Ala. 85, 52 So. 417, 28 L.R.A. (N.S.) 536; Aline Clisby v. State, 17 Ala.App. 475, 86 So. 140.

The evidence of the state tended to disclose that the searching party found in defendant's trunk in his home a small metal register only, which was stolen from the Taylor dwelling house. None of the other alleged stolen articles was found in the home or possession of defendant.

The defendant disclaimed all knowledge of the register being in his trunk, and testified that the first time he ever saw it, it was in the hands of one Summers, a state witness. Defendant's home was shown to have been about a mile and a half from the Taylor dwelling house. He testified (defendant) that he had never been to the Taylor dwelling house and did not know where it was, etc.

On the trial of this case, it was shown that dogs were used in trying to locate the perpetrator of the offense charged. Such evidence is admissible, but in so doing the state must first show that the dogs were trained to follow human tracks. In other words, to justify proof of the acts of dogs in trailing human beings, it must be shown that the dogs were trained to take the scent of human beings. In Little v. State, 145 Ala. 662, 39 So. 674, it was held: "In order that the trailing of bloodhounds from the place of the crime may be used as evidence against defendant, it must be first shown that the bloodhounds were trained to track human beings and could do so with a degree of accuracy." The court below over the objection and exception of defendant, allowed state witness Clarence Moore to give testimony relative to two hounds used by the parties in trying to trail the guilty person, and to the action of the men in handling the dogs, etc., without complying with the rule above announced, and in the absence of any attempt to make such testimony competent. However, error to a reversal in this connection will not be held, as later in the trial the proper...