White v. State
| Decision Date | 08 April 1915 |
| Docket Number | 145 |
| Citation | 68 So. 521,12 Ala.App. 160 |
| Parties | WHITE v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Clarke County; John T. Lackland, Judge.
Earnest White was convicted of larceny, and he appeals, and the State moves to dismiss appeal. Motion denied, judgment reversed and cause remanded.
T.J. Bedsole and Q.W. Tucker, both of Grove Hill, for appellant.
W.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.
This case is submitted on the motion of the Attorney General to dismiss the appeal on the ground that there has been a discontinuance of the appeal. The record shows that the judgment from which this appeal was prosecuted was rendered on the 11th day of April, 1914, and that at the time the sentence was pronounced against the defendant it was entered on the record of trial court that:
"Questions as of law having been reserved upon the trial of this case for the consideration of the appellate court and the defendant having made known his desire to prosecute an appeal from the judgment and verdict of the trial court, it is considered and adjudged that the execution of the judgment and sentence herein be suspended."
The bill of exceptions was presented to the trial judge for his signature on the 6th day of June, 1914, and was signed by him on the 17th day of June, 1914. The case was not docketed in this court on certificate, and the record was not filed here until the 27th day of August, 1914. The first call of the division to which the case belongs, after the appeal was taken, commenced November 9th, and on the authority of Campbell v. State, 182 Ala. 18, 62 So. 59, Ex parte Williams, 182 Ala. 34, 62 So. 63, and Cudd v. Reynolds, 65 So. 41, no prejudice having resulted because of the delay in filing the record, the motion of the Attorney General is overruled.
Motion to dismiss appeal overruled.
On the Merits.
The indictment on which the appellant was tried charges grand larceny, and is against appellant and four other persons charged jointly with him. The appellant was granted a severance from the others, and, the offense charged being of a class that may be committed by one person without aid or assistance of others--in other words, the offense being several as well as joint--it was not necessary to the defendant's conviction, and no burden rested upon the state, to show that those jointly indicted with the defendant on trial participated in the commission of the crime. Crawford v. State, 112 Ala. 1, 21 So. 214; Segars v. State, 88 Ala. 144, 7 So. 46; 22 Cyc. 453 (b). In cases where the indictment charges an offense which is necessarily such that it cannot be committed by one person alone, such as an indictment for conspiracy and like offenses, the rule is different. Townsend v. State, 137 Ala. 91, 34 So. 382; Elliot v. State, 26 Ala. 78; Thomas v. State, 111 Ala. 54, 20 So. 617; Lindsey v. State, 48 Ala. 169; Brimie v. United States, 200 F. 726, 119 C.C.A. 170; McGehee v. State, 58 Ala. 360; State v. McDonald, 1 McCord (S.C.) 532, 10 Am.Dec. 691; Miles v. State, 94 Ala. 106, 11 So. 403; 8 Cyc. 663 (11).
The evidence tending to connect the defendant with the offense was wholly circumstantial, and, in the absence of some proof tending to show a confederacy between the defendant on trial and the others jointly charged with him, evidence the only tendency of which was to connect the other defendants with the offense was not admissible against him. McAnally v. State, 74 Ala. 9; Smith v. State, 133 Ala. 77, 31 So. 942; Thomas v. State, 133 Ala. 139, 32 So. 250.
The trial court, in view of these principles, erred in admitting proof of the proximity of the residence of the other defendants to the scene of the alleged crime, and in admitting proof of the finding of a paper in the cotton house with the name of Henry White on it, and in admitting the paper in evidence.
It has been frequently held that a witness should not be allowed to state that a certain foot or shoe could or would make a particular track. If a track has any peculiarity by which it may be distinguished from other tracks, the witness can point them out, and if the evidence shows other similar tracks it is for the jury to determine whether they are made by the same person or thing. Pope v. State, 174 Ala. 76, 57 So. 245; Pope v. State, 181 Ala. 20, 61 So. 263.
A witness who was not present when a track is made should not be allowed to state how it was made or the peculiar...
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