Turner v. State

• Decision Date: 10 January 1900
• Parties: TURNER v. STATE.
• Court: Alabama Supreme Court

27 So. 272

124 Ala. 59

TURNER v. STATE.

Supreme Court of Alabama

January 10, 1900

Appeal from circuit court, Lowndes county; A. A. Evans, Judge.

Scott Turner was convicted of grand larceny, and he appeals. Reversed.

The appellant was tried and convicted under the following indictment: "The grand jury of said county charge that before the finding of this indictment, Scott Turner feloniously took and carried away two hundred and six dollars in money, in, to wit, one hundred and seventy dollars in paper currency of the United States of America, commonly called 'greenbacks,' a more particular description of which paper currency is unknown to the grand jury, and thirty-six dollars in silver coins, of the coinage of the United States, of the value of thirty-six dollars, a more particular description of which silver coins is unknown to the grand jury, the personal property of James, alias Jim Bolling, against the peace and dignity of the state of Alabama." To this indictment the defendant demurred upon the following grounds: "First, that the said indictment fails to allege the value of the one hundred and seventy dollars in paper currency of the United States of America commonly called 'greenbacks,' alleged to have been stolen; second, that the said indictment fails to allege from whom the said alleged personal property was stolen; third that the said indictment fails to allege the name of the person or the place from where the alleged personal property was stolen; fourth, that the said indictment fails to allege who was the owner of the one hundred and seventy dollars alleged to have been stolen." This demurrer was overruled, and the defendant duly excepted.

On the trial of the case the state introduced as a witness one James Bolling, who testified that he was the owner of a store in Lowndesboro; that on the night of December 28, 1897, the money described in the indictment was stolen from the safe in his store; that upon the morning of December 29, 1897, he went to his store about 5 o'clock. This witness was then asked by the solicitor if at this time he looked into the safe and found the money. The defendant objected to this question upon the ground that it called for illegal irrelevant, and incompetent evidence, and because the indictment did not charge the defendant with the theft of the money described therein, from the storehouse, and that therefore there was a variance between the charge contained in the indictment and the testimony sought to be adduced by such testimony. The court overruled the objection, and the defendant excepted. The witness answered that he examined the safe, and that the money was not there. The defendant then moved the court to exclude this answer upon the same grounds and duly excepted to the court's overruling this motion. This witness further testified that the defendant was in his employ as a clerk, and that some time during the morning after the money was taken the defendant told said witness about having discovered that the store had been broken into. The witness further testified that the money in the safe was his, and that the safe and storehouse were his; and on cross-examination he further testified that the storeroom and all that was in it, including the safe and the money that was stolen, were in the custody of the defendant. The defendant then moved the court to exclude that part of this witness' testimony which tended to connect the defendant with the taking of the money, upon the grounds that the evidence tended to show that the defendant had committed embezzlement, if any crime, and because there was a variance between such proof and the charge embraced in the indictment. The court overruled this motion, and the defendant duly excepted to such ruling. This witness further testified that the defendant had no money or income at the time the money was alleged to have been stolen, except a small salary which the witness paid him, and that the defendant had kept up with his salary. Daniel Alexander, a witness for the state, testified that during the month of March he was in the city of Montgomery with the defendant, and saw the defendant with a $10 bill. The defendant objected to the question which elicited this testimony, and also moved to exclude such testimony from the jury, on the ground that it was not shown that the $10 bill referred to was part of the money which was alleged to have been stolen, and that the possession of such money by the defendant was not sufficient reason to make the testimony admissible in evidence. The court overruled both the objection and the motion, and to each of these rulings the defendant duly excepted. Ansley Yeldell, a witness for the state, testified that he lived about four miles from the store of James Bolling; that he knew the defendant, who was a minor; and that he saw the defendant visit his mother's house at least twice a week during the time between December 28, 1897, and the month of July, 1898. The defendant objected to the question which elicited this testimony, and also moved the court to exclude such testimony, upon the ground that it was illegal and irrelevant testimony. The court overruled the objection and the motion, and to each of these rulings the defendant duly excepted. During the examination of Austin Fields, a witness for the state, he testified that he knew the defendant and his mother, Ann Turner; that in February, 1898, the defendant had sent word by him to his mother, Ann Turner, to send him $10. The defendant objected to this question upon the ground that it called for illegal and irrelevant testimony, and because it was not shown that the money sent for was a part of the money alleged to have been stolen. The court overruled the objection, and the defendant duly excepted. The witness answered that the defendant had sent for such money by him. W. E. Haynes, the sheriff of Lowndes county, was introduced as a witness for the state, and testified that in order to execute a search warrant he went to the house of Ann Turner, for the purpose of searching her house and herself for the money alleged to have been stolen from the safe of James Bolling's store; that at the time of making the search the defendant was not present at the house of his mother. Upon the witness being asked to state what he did and what he saw at said house, the defendant objected to said question on the ground that it called for illegal and irrelevant testimony, and because the defendant was not present at the time. The court overruled this objection, and the defendant duly excepted. The witness then testified that upon coming to the house of Ann Turner he told her that he had come to search her house and her person for the stolen money; that she replied to him that there was not but $6 in the house, and showed said $6 to the witness; that he then examined the house, but failed to find any other money; that he had received information that Ann Turner carried a large roll of money about her person, and that he then began to examine her person; that as he did this she asked to be excused a moment, and that, suspecting something wrong, he watched her, and saw her reach under her clothes, and take from her person and throw under the house a sock, which he picked up, and found in it one $10 bill, two $5 bills, two $1 bills, and $9.50 in silver. The defendant moved to exclude all of this testimony upon the ground that it was illegal, irrelevant, and incompetent, and that it was not shown...