Rogers v. State

• Decision Date: 21 July 1919
• Docket Number: 8 Div. 674
• Citation: 17 Ala.App. 175,83 So. 359
• Parties: ROGERS v. STATE.
• Court: Alabama Court of Appeals

83 So. 359

17 Ala.App. 175

ROGERS v. STATE.

8 Div. 674

Court of Appeals of Alabama

July 21, 1919

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Claude Rogers was convicted of receiving stolen goods, and appeals. Reversed and remanded.

Sample & Kilpatrick, of Cullman, for appellant.

J.Q Smith, Atty. Gen., and Horace Wilkinson, Asst. Atty. Gen for the State.

BROWN P.J.

The appellant was convicted of the offense denounced by section 7329 of the Code of 1907--buying, receiving, concealing, or aiding in concealing, stolen goods--as charged in the second count of the indictment. Under repeated rulings in this state, this operated as an acquittal of the offense charged in the first count of the indictment. Therefore the ruling of the court on demurrers to the first count of the indictment will not be considered or treated. The second count follows the form prescribed by the Code, and the demurrer thereto was properly overruled. Code 1907, §§ 7329, 7161 (form 90).

The court erred in overruling defendant's objection to the question, "For the purpose of refreshing your recollection as to the transaction, did you lose some meat the same night?" put to the witness Aldredge by the solicitor, and in overruling the motion to exclude the answer. There was no conflict in the evidence as to the time of the larceny from Maze's smokehouse, nor was there any uncertainty or fault in the recollection of the witness as to the time of the larceny, the witness having positively fixed the time as May 11, 1917. Under the evidence in this case the fact that Aldredge and others had meat stolen from them on the same night in no way tended to identify the defendant as the thief, or to identify the property sold by the defendant to Wilhite (if, in fact, the defendant sold it to Wilhite) as the property taken from Maze's smokehouse. The rule is that if a witness has given an ambiguous or indefinite answer or if his memory is at fault, the court, in the exercise of proper discretion, may allow inquiry as to statements or circumstances not otherwise material or competent which may tend to enable the witness to recollect more clearly the fact sought to be proved. Jones on Ev. § 883; Wigmore on Ev. § 416; Crane v. State, 111 Ala. 45, 20 So. 590; Grantham v. State, 75 So. 183. If evidence had been offered showing the character of the property lost by Aldredge, and this had been connected by evidence showing, or tending to show, that such property was found in the defendant's possession, these facts would have been admissible as evidence tending to identify the defendant as the guilty agent. Yarborough v. State, 41 Ala. 405; Mason v. State, 42 Ala. 538; Curtis v. State, 78 Ala. 14; Sellers v. State, 98 Ala. 75, 13 So. 530. No such evidence was offered. The only property which the evidence tends to show was found in the possession of the defendant was the meat sold to Wilhite, to wit, three hams, two middlings, and one shoulder, corresponding in description to the meat stolen from Maze's smokehouse.

The fact that the defendant frequently traded wagons was brought out by the defendant on the cross-examination of the witness Aldredge, and was apparently immaterial to any issue in the case. Therefore it was not error for the court to sustain the objection of the solicitor to the question asked the witness Hill, seeking to impeach Aldredge on this point.

This brings us to the question as to whether or not, in view of the provisions of section 7 of the Constitution of 1901, the act of February 18, 1919 (Pam.Acts 1919, p. 148), authorizing an indeterminate sentence in certain cases, is applicable to offenses committed before its passage, and, if so, whether it was properly applied in this case. This section of the Constitution provides:

"That no person shall be accused or arrested, or detained except in cases ascertained by law, and according to the form which the same has prescribed; and no person shall be punished but by virtue of a law established and promulgated prior to the offense and legally applied" (emphasis supplied).

That a law, enacted subsequent to the commission of a crime, which provides a greater punishment than was annexed to the crime when it was committed, or that applies the penalty with greater severity, cannot be applied to such crime is a universally recognized rule of constitutional law. Bloodgood v. Cammack, 5 Stew. & P. 276; Elliott v. Mayfield, 4 Ala. 417; Eliza v. State, 39 Ala. 693; Aaron v. State, 39 Ala. 684; Hart v. State, 40 Ala. 32, 88 Am.Dec. 752; Morgan v. State, 47 Ala. 36; Caldwell v. State, 55 Ala. 133; Brown v. State, 115 Ala. 74, 22 So. 458.

The correlated rule, equally as well established, is, if a statute, subsequently enacted, reduces the punishment annexed to a crime, or applies the punishment with less rigor, it is applicable to offenses committed prior to its enactment. Turner v. State, 40 Ala. 21.

The provisions of the act of February 18, 1919, in so far as they are pertinent to the question now presented, are:

"Section 1. *** That, in the trial of any felony for which the court is authorized to fix the punishment, the punishment shall be fixed by the trial court as hereinafter provided.

"Sec. 2. That, in all cases in which the punishment fixed by the statute is imprisonment in the penitentiary, and in which a maximum and a minimum term is prescribed, the court shall pronounce upon the defendant an indeterminate sentence of imprisonment in the penitentiary for a term not less than the minimum and not greater than the maximum fixed by the statute for such offense, stating in such sentence the minimum and maximum limits thereof. ***

"Sec. 4. Whenever the minimum term of sentence of any person imprisoned in the state penitentiary shall have expired, it shall be the duty of the warden of such prison where such person is imprisoned, to send the record of such prisoner to the board of pardons, and if, from such record the

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