Orr v. State
| Decision Date | 13 June 1895 |
| Citation | 107 Ala. 35,18 So. 142 |
| Parties | ORR v. STATE. |
| Court | Alabama Supreme Court |
Appeal from city court of Talladega; John W. Bishop, Judge.
Whit Orr was convicted of larceny, and appeals. Reversed.
The appellant was indicted for larceny from a storehouse, and for receiving stolen property. The indictment contained three counts,-the first two charging larceny, and the third charging defendant with receiving stolen property, knowing the same to have been stolen. The evidence introduced on behalf of the state tended to show that the defendant had stolen certain articles of merchandise from the store of one Mike Mireno; and another phase of the state's testimony tended to show that one Joe Lewis stole the property, and delivered it to defendant to keep for him, and that the defendant received the property and concealed it under his house, where it was found by officers. Upon the cross-examination of Mireno, the owner of the store from which the property was stolen, and who was a witness for the state, the defendant's counsel asked the witness "if he did not say to Henry Headen, a few days after the larceny in his store, in the city of Talladega, that it was the skinny-headed boy who stole the goods." The state objected to this question on the grounds: (1) That it called for immaterial and incompetent testimony; (2) that it sought to contradict and impeach the witness Mireno on an immaterial matter. The court overruled the objection. Upon the examination of the said Henry Headen, he was asked by the defendant's counsel "if Mike Mireno did not state to him in Mireno's store, in the city of Talladega, a few days after the larceny, that it was the skinny-headed boy who stole the goods." The state objected to this question on the same grounds interposed to the question asked the witness Mireno. The court sustained the objection, and the defendant duly excepted. The testimony for the defendant tended to show that the defendant did not commit the larceny, but that after the larceny the defendant was with Joe Lewis, who had the stolen articles in a basket. During the examination of the state's witnesses, the defendant moved the court to compel the state to elect for which crime charged in the indictment it would prosecute the defendant, and duly excepted to the court's overruling his motion. After the introduction of all the evidence, the defendant again moved the court to require the solicitor to elect for which offense charged in the indictment he would seek a conviction; but the court overruled this motion, and the defendant duly excepted.
Willington Vandiver and Whitson & Graham, for appellant.
W. C Fitts, Atty. Gen., for the State.
The defendant was convicted of larceny from a storehouse. The indictment contained three counts. The first two charged the defendant with grand larceny, and the third with the offense of receiving stolen property. Neither before nor after the evidence had closed did the defendant have the right to require the state to elect for which of the offenses charged it would prosecute. A careful solicitor should always frame the indictment with as many counts as may be necessary to meet the different phases the evidence may assume. Embezzlement and larceny, burglary and larceny, larceny and receiving stolen property, and offenses of like character may properly be joined in separate counts in the same indictment; and, where larceny has been effected by means of a burglary, it is not improper to charge the larceny in the same count with the burglary. The object in such prosecutions is not to convict the defendant of distinct offenses, but of the single offense established by the evidence. The rule is clearly stated in the case of Bishop v. State, 30 Ala. 34, and in 1 Bish. Cr. Proc. § 457, the author specially states that the joinder of larceny and receiving stolen property in separate counts does not present a case for the doctrine of election. Bowen v. State (Ala.) 17 So 335; Gordon v. State, 71 Ala. 315.
The law is well settled that a...
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Eldridge v. State
...the possession of property recently stolen is prima facie evidence of guilt without the qualification "unexplained". Orr v. State, 107 Ala. 35, 39, 18 So. 142 (1895). direct evidence of actual knowledge or belief in the stolen character of the property is rarely going to be available. Buckl......
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Wilcox v. State
...stolen property, and offenses of like character may properly be joined in separate counts in the same indictment...." Orr v. State, 107 Ala. 35, 18 So. 142 (1895); Rose v. State, 117 Ala. 77, 23 So. 638 (1898); Perry v. State, 25 Ala.App. 224, 143 So. 835, cert. denied, 225 Ala. 441, 143 So......
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Buckles v. State, 1 Div. 731
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