Sullivan v. State

• Decision Date: 17 May 1927
• Docket Number: 1 Div. 705
• Citation: 22 Ala.App. 140,114 So. 73
• Parties: SULLIVAN et al. v. STATE.
• Court: Alabama Court of Appeals

114 So. 73

22 Ala.App. 140

SULLIVAN et al. v. STATE.

1 Div. 705

Court of Appeals of Alabama

May 17, 1927

Rehearing Denied June 21, 1927

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Rhoda Sullivan and Albert Wilkerson were convicted of grand larceny, and they appeal. Affirmed.

Certiorari denied by the Supreme Court in Sullivan v. State, 114 So. 74.

McMillan & Grove, of Mobile, for appellants.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

The defendants were indicted for the offense of grand larceny. The specific charge was that they feloniously took and carried away 2 hogs of the value of $15 each, and 3 hogs each of the value of $6, the personal property of Mathew Davis.

Several special charges in writing were requested by the defendants and the court gave all of said charges except refused charges 1 and 2. These refused charges were affirmative in behalf of the defendants, respectively, and sought to have the court direct a verdict in their behalf. The court properly declined to do so, for the evidence was in direct conflict and the conclusion to be reached therefrom was one of fact, and not a question of law for the court. Where the evidence is in conflict, as here, a jury question is presented. In this case, a clear-cut issue of fact for the determination of the jury was apparent.

The first question presented is an exception reserved by defendant to the action of the court in sustaining the objection by the state to the question propounded to the alleged injured party, Mathew Davis, on his cross-examination. This witness had identified certain hogs found in defendant Rhoda Sullivan's pen as being his hogs, and this witness had testified that these hogs had been recently taken from a range back of his house in the same section that he (witness) lived in. He had also testified:

"I never seen Rhoda Sullivan's hogs on that range too; she has not always had hogs on that range that I know of."

The defendant then asked him:

"As a matter of fact, she has been employing you to go out there and catch hogs for her every winter, about two winters ago?"

The court, as stated, sustained the general objection of the state to this question, and thereupon defendant's counsel made known to the court:

"We expect to show that these were Rhoda Sullivan's hogs that were caught on this open range, and that Rhoda Sullivan has hogs there every winter, and, as was done in this case, she employs people to go out there and catch them for her, and she employed this particular witness to go out two winters ago and catch hogs, and we expect further to show, may it please the court, that these hogs were Rhoda Sullivan's hogs."

This was a proper inquiry upon the cross-examination of this, the principal state witness, and if the matter had been allowed to rest there prejudicial error in this ruling necessarily would have followed. But this error was cured by the testimony of this witness later on, upon his cross-examination, wherein he testified, without objection fully as to the matter inquired about and to which the state's objection was...