Talbert v. State

• Decision Date: 20 April 1899
• Citation: Talbert v. State, 121 Ala. 33, 25 So. 690 (Ala. 1899)
• Parties: TALBERT v. STATE.
• Court: Alabama Supreme Court

25 So. 690

121 Ala. 33

TALBERT v. STATE.

Supreme Court of Alabama

April 20, 1899

Appeal from circuit court, Washington county; William S. Anderson Judge.

Dan Talbert was convicted of larceny, and he appeals.Affirmed.

The evidence for the state tended to show that the defendant took the gun in the presence of one of the state's witnesses and was seen carrying it off by the owner of the gun; that upon the owner requesting him to return the gun, he said that he would do so if the owner would pay him eight dollars that said owner owed the defendant; that the owner paid the defendant the eight dollars, but that he still refused to deliver him the gun.The evidence for the defendant tended to show that he won the gun at a game of cards with the owner that, after winning it, he allowed the owner to keep it, and that he subsequently took the gun in the presence of the owner and other persons, and told the owner that he would return it to him upon the owner paying him forty dollars, which was the estimated value of the gun; that, after the owner paid him eight dollars, the defendant stated to him that, upon the payment of the balance of the forty dollars he, the owner, owed the defendant, the latter would return the gun.Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1)"The court charges the jury that if they believe the evidence they must find the defendant not guilty."(2)"The court charges the jury that unless they believe from all the evidence that the defendant is guilty as charged in the indictment, without a single doubt for which a reason can be given, then they must find the defendant not guilty."(3)"The court charges the jury that unless they believe from all the evidence, without a single doubt for which a reason can be given, that the defendant took the gun with the intent to steal, they must find the defendant not guilty."(4)"The court charges the jury that, if they believe from the evidence that the state has proven facts tending to show the guilt of the accused, the burden is then on the defendant to introduce some evidence of an affirmative defense, but, when the defendant has done this, the burden is upon the state to prove beyond every reasonable doubt and to a moral certainty that this affirmative defense is false."(5)"The court charges the jury that if they believe from all the evidence that the gun was taken openly in the presence of Jack Coleman or others, and that there was no subsequent attempt to conceal it connected with any claim of right whatever, then they must find the defendant not guilty."(6)"The court charges the jury that if they believe from all the evidence that the defendant took the gun openly in the presence of the owner or others, and at the time of the taking he offered to return the gun to the owner, provided that the owner would pay him eight dollars, which he claimed to be due from the owner to him, then they cannot presume that a felonious intent existed at the time of the taking, and must find the defendant not guilty."

Edward P. Wilson, for appellant.

Charles G. Brown, Atty. Gen., for the State.

TYSON J.

There is a conflict in the decisions of this court upon the question where a defendant is charged with larceny, and the evidence discloses that the taking was open and in presence of the owner or other persons, and there is no subsequent denial or concealment of the act, as to whether he can, as a matter of law, be convicted.The earliest case in this state is McMullen v. State,53 Ala. 531, where the rule was declared to be: "If it should appear that the prisoner took the prosecutor's goods openly, in his presence, or the presence of other persons, and not by robbery, or, having them in possession, avowed the fact before he was questioned concerning them," etc., "these circumstances would be pregnant evidence to the jury that the taking was without felonious intent, but a mere trespass."They were "pregnant circumstances" for the consideration of the jury, but it was their province to determine whether the presumption favorable to the prisoner arising from them was not repelled, in view of all the evidence.Notwithstanding this case was expressly overruled upon this point in Johnson's Case, 73 Ala. 523, which we will give an extended notice later on, this court, in the case of Barnes v. State,103 Ala. 44, 15 So. 901, reaffirmed the doctrine there declared, and cited it with approval, when Justice McClellan said: "Charge 3, refused to the defendant, in effect declared that there cannot be a larceny when the capture is open and in the presence of other persons, and there is no subsequent denial for concealment of the act.This is not...