Rikard v. State

• Decision Date: 30 January 1917
• Docket Number: 8 Div. 369
• Citation: 73 So. 992,15 Ala.App. 497
• Parties: RIKARD v. STATE.
• Court: Alabama Court of Appeals

73 So. 992

15 Ala.App. 497

RIKARD v. STATE.

8 Div. 369

Court of Appeals of Alabama

January 30, 1917

Appeal from Circuit Court, Colbert County; C.P. Almon, Judge.

John Rikard, alias John Rickard, was convicted of murder in the second degree, and appeals. Reversed and remanded.

James H. Branch, of Tuscumbia, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

BRICKEN J.

The defendant, John Rikard, alias Rickard, was charged with the offense of murder in the first degree, and was tried and convicted of murder in the second degree and sentenced to the penitentiary for a period of 15 years, in the circuit court of Colbert county. This was a case of circumstantial evidence, and the prosecution was based principally upon the fact that, shortly after the death of Casey, the defendant was found to be in the possession of personal property which had been stolen, consisting of five head of cattle, which had belonged to deceased. Numerous objections were interposed during the trial and exceptions reserved touching the sufficiency of the testimony offered by the state, and a motion was made to exclude the testimony of the state on these grounds. This motion was properly overruled, and the court committed no error in refusing to give the general affirmative charge for the defendant.

"Possession of the fruits of crime, recently after its commission, is prima facie evidence of guilty possession; and if unexplained, either by direct evidence or by the attending circumstances, or by the character and habits in life of the possessor, or otherwise, may be taken as conclusive. This rule of presumption is not confined to the case of theft, but is applied to all cases of crime, even the highest and most penal." 1 Greenleaf, § 34; Malachi v. State, 89 Ala. 142, 8 So. 104.

This presumption is one of fact, to be passed upon by the jury. Cases supra.

When a larceny, robbery, arson, or even murder with robbery, has been committed, and soon afterwards goods which were stolen at the time the crime was committed are found in the possession of one not having the rightful custody, there is a presumption more or less strong that the possession was a guilty possession, and that the custodian committed the crime of which the acquisition of the goods was a presumed concomitant. The better authorities hold that this is not a presumption of law, but one of fact. All agree however, that if the discovery follow close upon the crime the duty is cast on the custodian to explain how he acquired possession. Failing to do so to the reasonable satisfaction of the jury, or to generate a reasonable doubt of his guilt, he may be convicted, on this evidence alone, of the crime of which the theft was the motive, or concomitant. Malachi v. State, supra.

Under the above well-settled principles of law, the court did not err in overruling the motion to exclude the evidence of witness Brenneman, who had testified that:

"On Wednesday, the 28th of October, 1914, he saw the defendant driving J.B. Casey's [deceased's] cattle from the direction of Casey's home towards Barton." Martin v. State, 104 Ala. 71, 16 So. 82.

Dr W.H. Green was shown to be an expert. He was therefore competent to express his opinion as to the place of entrance on Casey's head of the shots that produced his death. The court therefore committed no error in overruling the objections to the questions propounded to this witness. Neither did the court err in declining to grant the several motions made by defendant to exclude this testimony. This disposes of the second,...