Morrow v. State
| Decision Date | 03 April 1923 |
| Docket Number | 8 Div. 52. |
| Citation | 19 Ala.App. 212,97 So. 106 |
| Parties | MORROW v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied April 17, 1923.
Reversed on Mandate of Supreme Court, April 26, 1923.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Rube Morrow was convicted of grand larceny, and appeals. Reversed and remanded on certiorari granted by Supreme Court in Ex parte Rube Morrow, 97 So. 108.
John A Lusk & Son, of Guntersville, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
The granting of a continuance in the trial of a criminal case is within the discretion of the trial judge, and his decision will not be disturbed unless it appear that the discretion was abused. Sanders v. State, 181 Ala. 35, 61 So 336; Gilbert v. State, 2 Ala. App. 94, 57 So. 127; Sanderson v. State, 168 Ala. 109, 53 So. 109; Castona v. State, 17 Ala. App. 421, 84 So. 871.
Where a crime is shown to have been committed in a certain house and the tracks of human beings are found near the house, it is competent to show, and a witness may testify, in which direction the tracks were going, if the other evidence in the case tended to connect the defendant with the crime and with the making of the tracks. The testimony of the witness as to the direction in which the tracks were leading is not a conclusion, but the statement of a fact.
The evidence for the state tended to show that Moultrie, the injured party, had some soy beans in sacks, stored in a house on his place; that without his knowledge or consent these beans were removed; that there were tracks of three men in and around the house where the beans were stored, which when followed led to a point near defendant's house. These tracks were identified as men tracks, or as tracks made by shoes ordinarily worn by men. Along with the tracks were found some soy beans, as if they had been dropped along while being carried. This was sufficient evidence to establish the corpus delicti. So that the ground of objection to evidence that the corpus delicti had not been proven is not well taken.
Owing to the fact that it is a matter of common knowledge that there is a marked and well defined difference between shoes ordinarily worn by men and those worn by women, to such an extent even that everybody of ordinary intelligence knows the difference between a man's shoe and a woman's shoe, it is not error for the court to permit a witness to state as a fact, if he knows, that a certain track was made "by a shoe ordinarily worn by a man."
No effort was made to show directly that either of the three tracks found at the house from which the beans were stolen were the tracks of the defendant, or that they corresponded with defendant's tracks, and the fact that these three tracks led to within 100 yards of defendant's house was not of itself sufficient to connect the defendant with the commission of the crime. But evidence of these tracks was relevant as part of the res gestæ, tending to establish the corpus delicti, and when evidence was introduced tending to connect defendant with the recent unexplained possession of the beans alleged to have been stolen, not only was a fact tending to establish the fact that the beans were stolen, but was a circumstance, though slight, to which the jury might look in determining the guilt or innocence of the defendant. Campbell v. State, 17 Ala. 369; Baalam v. State, 17 Ala. 451; Levison v. State, 54 Ala. 520; Burton v. State, 115 Ala. 1, 22 So. 585. As a general proposition, any evidence that tends in any reasonable degree to establish the probability or improbability of a fact in issue, no matter how slight its weight may be, is relevant. Elliott on Evidence pars. 144, 145, 147; 1 Greenleaf, E. par. 61a.
We have many decisions and some conflict, in this state, as to the identity of tracks, for that enters the realm of opinion evidence, as...
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