Moss v. State

• Decision Date: 17 February 1906
• Parties: MOSS v. STATE.
• Court: Alabama Supreme Court

40 So. 340

146 Ala. 686

MOSS v. STATE.

Supreme Court of Alabama

February 17, 1906

Appeal from City Court of Anniston; Thomas W. Coleman, Judge.

"Not officially reported."

Frank Moss was convicted of larceny from a railroad car, and he appeals. Affirmed.

The defendant was tried and convicted for stealing three pairs of shoes from a railroad freight car, and the shoes are alleged to be by the indictment the personal property of the Louisville & Nashville Railroad Company. The first count charged burglary from a railroad car, the second count charged larceny from a railroad car, and the third count charged receiving, concealing, or aiding in concealing. The court refused to give the following charges requested by the defendant: "(2) If the jury believe the evidence, they will find the defendant not guilty under the second count in the indictment. (3) If the jury believe the evidence, they will find the defendant not guilty. (4) The fact that '$5.00' was stamped upon the shoes is not evidence and, unless the evidence convinces you beyond a reasonable doubt of the value of the shoes, then your verdict should be for the defendant under the second count in the indictment."

Tate &amp Walker, for appellant.

Massey Wilson, Atty. Gen., for the State.

SIMPSON J.

The defendant was tried and convicted under the second count of an indictment charging larceny from a railroad car of three pair of shoes, "the personal property of the Louisville & Nashville Railroad Company."

It is insisted, first, by counsel for defendant, that it was improper to admit the testimony of the witness Beal in regard to the description of the shoes worn by defendant when he was arrested, because the manner in which he was induced to take the shoes off for inspection amounted to compelling him to produce testimony against himself. The witnesses who were present when the shoes were taken off state that no threats were made and no inducements offered; that the warden, a policeman, and an agent of the Louisville & Nashville Railroad Company went to the prison where the defendant was confined, and "told the defendant to pull off the shoes that they wanted to see what kind they were, and that the defendant pulled them off and handed them to the witness. * * * It did not appear that the defendant made any objection to taking off the shoes and handing them to the witness." There was no error in admitting this testimony. Potter v State, 92 Ala. 37, 40, 9 So. 402.

The defendant himself, subsequently, in testifying, stated that they requested him to let them see his shoes, and he took them off and handed them out. So, if there was any error in the admission of the testimony in the first instance, it was without injury, as it was clearly admissible, under the statement of the defendant. Fuller v. State, 117 Ala. 36, 23 So. 688; Patterson v. Burnett, 6 Ala. 844, (3 h. n.); White v. State, 133 Ala. 122, 32 So. 139; Stevens v. State, 138 Ala. 71, 35 So. 122.

As shoes are...