Pellum v. State

• Decision Date: 18 June 1890
• Citation: 89 Ala. 28,8 So. 83
• Parties: PELLUM v. STATE.
• Court: Alabama Supreme Court

8 So. 83

89 Ala. 28

PELLUM v. STATE.

Supreme Court of Alabama

June 18, 1890

Appeal from circuit court, Dale county; JESSE M. CARMICHAEL, Judge.

H H. Blackman, for appellant.

W L. Martin, Atty. Gen., for the State.

MCCLELLAN J.

1. The appellant was convicted under an indictment charging him with the larceny of a watch and certain money from one Reynolds. The line of his defense appears to have been that he won the watch and money from the prosecutor at a game of cards. Against his objection the state was allowed to prove by the foreman of a grand jury that the defendant, having been summoned before that body as a witness in the investigation of another matter, was examined with respect to his knowledge as to gambling in the community, and had stated on this examination that he had played cards on the night of the alleged larceny with the said Reynolds, "and won his gold watch and _________ in money." It is insisted for appellant that the only instances in which a grand juror will be permitted to disclose evidence adduced before the grand jury are those in which the disclosure may be required, under section 4351 of the Code, "for the purpose of ascertaining whether it is consistent with the testimony given by the witness before the court, or on a charge of perjury against him;" and that, inasmuch as this was not a charge of perjury, and the defendant was not examined as a witness on this trial, the case does not fall within the statute, and the evidence of the grand juror was erroneously admitted. It would seem, on authority, that this contention is untenable, and that such testimony is competent for other purposes than those set forth in the section quoted from. Thomp. & M. Jur § 706, (6;) State v. Broughton, 7 Ired. 96; U.S. v. Porter, 2 Cranch, C. C. 60; U.S. v. Charles, Id. 76. Be that as it may, however, if this testimony was incompetent it comes clearly within the principle settled in the case of Marks v. State, 87 Ala. 99, 6 South. Rep. 377, to the effect that an erroneous ruling of the trial court to which the defendant excepts will not avail him on appeal when this court can affirmatively determine that rulings in line with defendant's objection could not have been prejudicial to him. It appears in this record, as we have seen, that the defendant claimed that he had won the property, alleged to have been stolen, from Reynolds at cards. His statement before the grand jury went directly to support this theory of the defense, and we cannot conceive but that its sole tendency was beneficial to him. Whether its admission was error or not, therefore, a reversal cannot be had on account of it.

2. There was no error in the charge given at the instance of the state to the effect that "it is the duty of the defendant in proving an alibi to reasonably satisfy the jury that he was elsewhere at the time of the commission of the offense." Spencer v. State, 50 Ala. 124; 1 Amer. & Eng. Enc. Law, 454, 455. We understand this charge to be simply that the burden of proof as to an alibi is upon the party who set up that defense. If the...