Smith v. State

• Citation: 31 So. 806,133 Ala. 145
• Parties: SMITH v. STATE.
• Decision Date: 10 April 1902
• Court: Supreme Court of Alabama

31 So. 806

133 Ala. 145

SMITH v. STATE.

Supreme Court of Alabama

April 10, 1902

Appeal from circuit court, Lauderdale county; E. B. Almon, Judge.

Calvin Smith was convicted of larceny from a storehouse, and appeals. Affirmed.

The indictment under which the defendant was tried and convicted charged larceny from the storehouse alleged to be the property of B. B. Garner, and further charged that the meat and lard stolen from said storehouse were the property of said B. B. Garner. On the trial of the cause, B. B. Garner as a witness testified that he was a member of the firm of Garner & Embry, who conducted a wholesale grocery business in the city of Florence; that prior to the arrest of the defendant on a warrant issued by a justice of the peace, they had missed lard and meat from their storehouse in considerable quantities. The witness further testified that the storehouse occupied by Garner & Embry had a basement where some of the goods were stored; that among the employés of the store was one Andrew Thompson, who was employed as a driver of one of the drays, and sometimes as a porter; that said Thompson had access to the basement, and sometimes went into the basement alone; that he could have opened the rear door or window of the basement, which opened on the alleyway used for delivering goods, and in this way have disposed of the goods which had been stolen; that said Thompson was suspected of using the basement and door or window thereto in stealing the goods, which could be done by handing the goods to some one stationed outside the door into the alleyway that the defendant worked as a porter in the store of Sullivan & Hart Dry Goods Company, which immediately joined the store of Garner & Embry; that the store where the defendant worked had a basement, and was situated similarly to the store of Garner & Embry, and that the defendant carried the key to said basement. To the part of this witness' testimony which related to the basement and the facilities that were supposed to be offered for robbing the store, the defendant objected, and moved to exclude same from the jury, unless it should be shown that the basement to the Sullivan & Hart Dry Goods store was in fact used for that purpose. In connection with this witness' testimony there was offered in evidence several pieces of meat and a bucket of lard, which were shown to have been taken from the house of the defendant. The witness Garner testified that the meat stolen from the storehouse of Garner & Embry was of the same kind as that exhibited in evidence, and the lard was in buckets similar to the one introduced in evidence; that he could not say positively that the goods introduced in evidence as those taken from the house of the defendant were the identical goods stolen, but that they were of the class of goods which Garner & Embry dealt in, and were of the same kind as the goods stolen. This witness further testified that the store occupied by Garner & Embry did not belong to Garner & Embry; that the stock of goods belonged to said Garner &amp Embry, and that he was a member of said firm; and that he and said John Embry, the other member of said firm, owned the goods alleged to have been stolen, and owned said store. The defendant moved the court to exclude the evidence of this witness, and to quash the indictment, upon the ground that there was a variance between the indictment and the proof as to the ownership of the goods alleged to have been stolen and between the proof and the indictment as to the ownership of the stock from which said goods were alleged to have been stolen. The court overruled the motion, and the defendant duly excepted. There was other evidence introduced to show that the goods introduced in evidence, and which were shown to the witness Garner, were taken from the house of the defendant while his house was being searched under the authority of a search warrant. The officer who took the goods from the defendant's house testified that the defendant claimed to have purchased said goods from one Jim Pruitt, who conducted a retail grocery store in Florence; that while in the officer's presence the defendant asked Pruitt if he did not get said goods from him, and Pruitt testified that he did sell such goods to the defendant. Upon the examination of Pruitt as a witness, he testified that the goods sold by him to the defendant were not of the same character as those introduced in evidence. The defendant introduced several witnesses, who testified to his good character in the community where he lived for honesty. The defendant moved the court to exclude from the jury all the evidence introduced by the state having reference to his possession of the goods by the defendant, or to any explanation of the possession of the goods by the...