Rogers v. State, 2 Div. 832

• Decision Date: 28 October 1952
• Docket Number: 2 Div. 832
• Citation: 36 Ala.App. 602,61 So.2d 249
• Parties: ROGERS v. STATE.
• Court: Alabama Court of Appeals

Page 249

61 So.2d 249

36 Ala.App. 602

ROGERS v. STATE.

2 Div. 832.

Court of Appeals of Alabama.

Oct. 28, 1952.

Reginald Richardson, Greensboro, for appellant.

Si Garrett, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., and Chas. C. Carlton, Montgomery, of counsel, for the State.

PRICE, Judge.

This case arose from the same facts and circumstances as that of Travis Cromer v. State recently decided by this court and reported in 60 So. 2d 379.

Appellant was convicted of larceny of the same two calves involved in the Cromer case. The material facts and circumstances for the State as to the truck wreck, the tying up of the calves and the persons found at the scene are fully set out in that case, and are adopted as the facts of this case.

Mr. John Otts, deputy sheriff, after proper predicate was laid, testified defendant said he would tell the facts and get it off his chest. He told the officers he was at Hillcrest Gardens Night Club when he heard the truck had turned over. He and several others, including Cromer, decided to go and get some of the calves and that Mr. Terry said he would keep them in his pasture. Defendant and Cromer left in his car to go to the cotton mill to get some rope and met the others at the wreck, but stated he did not get out of the car and did not catch any of the calves.

Defendant denied telling Mr. Otts he went to steal the calves. He said he told him he went to see the wreck and knew nothing about the cows being tied up. He testified he and Cromer went to the cotton mill to take a boy home who was drunk and then drove to the wreck. They started to join their friends when a truck came over the hill, and seeing his friends jump the fence and run, appellant did the same thing. When he came back to his car, he rode up and down looking for the other boys. About daylight Mr. Sherrer stopped him.

The proof of the asportation was sufficient to sustain the charge of larceny. Cromer v. State, supra. The motion to exclude the evidence was properly overruled.

Murphy McKinley testified he knew defendant's general reputation in the community, and it was good. On cross-examination the witness stated he based his testimony on his personal knowledge. On motion of the State, the court excluded his testimony. On redirect examination the witness was asked: 'Q. You state that his general reputation in the community in which he lives is good?' The witness answered: 'A. Yes, so far as I know. I don't pay no attention to what I hear.' The court stated: 'Gentlemen of the Jury, the court's remarks to you still hold true. You are to disregard the testimony of this witness.'

In this there was no error. The court may, ex mero motu, exclude improper evidence at any stage of the trial. Liner v. State, 124 Ala. 1, 27 So. 438; Vaughn v. State, 130 Ala. 18, 30 So. 669; Jarvis v. State, 138 Ala. 17, 34 So. 1025.

S. D. Buck, a State witness, testified defendant's character was bad. On cross-examination he stated he based such testimony on his personal contact, as a police officer, with defendant. A motion to exclude the testimony was granted. On redirect examination he stated he knew defendant's general reputation in the community where he lived and it was bad. The court stated: 'The last testimony of the witness, gentlemen, is for your consideration.'

By this remark of the court the matter was properly made clear to the jury, and such action did not constitute reversible error.

Appellant complains of the court's refusal to consider requested charges because they were presented to the court at the conclusion of the oral charge.

The trial court cannot fix the time at which charges should be presented for consideration. If they are presented at any time during the trial and before the jury retires they must be given or refused, as provided for by Title 7, Section 273, Code 1940....