Wilson v. State, 4 Div. 841.

• Decision Date: 16 May 1944
• Docket Number: 4 Div. 841.
• Citation: 31 Ala.App. 560,19 So.2d 777
• Parties: WILSON v. STATE.
• Court: Alabama Court of Appeals

19 So.2d 777

31 Ala.App. 560

WILSON v. STATE.

4 Div. 841.

Alabama Court of Appeals

May 16, 1944

Rehearing Denied June 6, 1944.

Reversed on Mandate Nov. 14, 1944.

Appeal from Circuit Court, Henry County; D.C. Halstead, Judge.

Certiorari granted by Supreme Court in Wilson v. State (4 Div. 343), 19 So.2d 780.

J.N Mullins, Jr., and J.N. Mullins, both of Dothan, and Theodore R. Ward, of Abbeville, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

The indictment in this case contained two counts. Conviction of the defendant was upon count one, which reads as follows "The Grand Jury of said county charge, that before the finding of this indictment that Lloyd Wilson feloniously took and carried away one heifer calf, the personal property of Charley Haywood," etc.

After hearing the evidence and arguments of counsel, also the charge of the court, the jury returned the following verdict "We the jury find the defendant guilty of grand larceny as charged in count one of the indictment." Whereupon the defendant was duly adjudged guilty of said offense, and judgment of conviction was properly pronounced and entered. The defendant was sentenced by the court to serve three years imprisonment in the penitentiary. From said judgment this appeal was taken.

The evidence shows without dispute that the heifer calf involved in this case had been stolen from its rightful owner, Charley Haywood, the alleged injured party, about the last of March or the first of April 1942. In October, 1942, Haywood found his heifer calf in the field of Mr. Wade Searcy. When so found the ears of the heifer calf had been cut off. Mr. Wade Searcy testified as follows:

"During last year I bought a black heifer calf from Mr. Lloyd Wilson the defendant. The marks of identification on that calf were that it had ears cut mighty near off, both of them. It was along the last of September or the first of October, 1942, when I bought the calf. Somewhere along about the middle of October, Charley Haywood came to see me about that yearling. I kept the yearling somewhere about three weeks. About the time he came to see me or just after that time this defendant, Lloyd Wilson, came to me and talked to me about the yearling and Mr. Haywood was present. Mr. Haywood came over there and asked me about the yearling and I told him about the yearling down there in my fields. I had fourteen yearlings down there. He said if you don't care I would like to go look at them, and I said go ahead and told him where they were at. He came back and said it was his yearling and I said if it is your yearling I want you to have it, and he said I will tell you I will come back tomorrow and let you know what to do about it. He came back the next morning and talked to me a few minutes and said he was going to see Mr. Wilson and he went off and was gone something like an hour or an hour and a half and come back and told me Mr. Wilson will be out here to see you, and he hadn't more than got through when Mr. Wilson come up and called me out there and asked me if he would give me my money back would I let Mr. Haywood have the yearling and I said 'sure' and he gave me the money back and I told Mr. Haywood to go get his yearling, and he come the next day and got it.

"The Court then asked the witness: Where did that occur? Was it here in Henry County?

"The witness: Yes, sir.

"The Court: And you bought it here in Henry County?

"The Witness: Yes, sir.

"On cross examination the witness testified as follows: Yes, when this man Haywood went off to see Mr. Wilson, he did come back to see me; and Mr. Haywood got the yearling the next day and Mr. Wilson paid me the money. Mr. Haywood got the yearling back the same day Mr. Wilson paid me the money."

At the time this heifer was brought to the defendant's farm, he, defendant, had two negro tenants on his place, viz.: Rob Feagan and Pearl Feagan, man and wife. These two persons were State witnesses and their testimony was of the same import. Pearl Feagan testified as follows:

"I am the wife of Rob Feagan that just left the stand. During the month of April of last year, my husband and I lived with and worked for Mr. Lloyd Wilson, the defendant. During that month I seed a black heifer calf brought there to his house. Mr. Lloyd Wilson brought it there. He had a rope on it and he was driving it and the calf running in a trot, and he ran up there in the back yard with the calf and he said: to his wife, 'I got back,' and she said: 'Yes, I see you did.' When I first saw him driving that calf he came from through the woods. He had a rope on it. When got there to the back of his house he told his wife to come out and hold the calf, and she said she couldn't do it, and he said I can hold her, and he ran the rope around this pecan tree, drawed the calf's head against the tree right close and clipped his ears. I couldn't tell whether it was a knife or what it was, but he cut both ears off. He cut both ears off immediately after he drove it up there. He then put the calf in the cow pen. The cow pen was an old log crib and he told his wife to open the door, and she said: 'What are you going to do,' and he said: 'I am going to put her in here, what in the hell do you think I am going to do with her.' And he drove the calf into the crib door. I am sure the calf stayed in there two weeks. He then put the calf in the pasture."

It appears from the record that after this appellant had been arrested charged with the larceny of the heifer, he, in turn, swore out a warrant against his negro tenant, Rob Feagan, above mentioned, charging him with the larceny and claiming that his (appellant's) son had bought the heifer from Feagan. In this connection the defendant (appellant) testified, among other things: "I did not steal the yearling. Rob Feagan brought it there and sold it to my boy Eugene Wilson. I sold the yearling to Mr. Searcy." On cross-examination he stated, "I did take out a warrant against that negro and I made the affidavit before Judge Norden, and in that affidavit I swore that Rob Feagan, with intent to defraud, sold a black heifer yearling to me and not to my boy."

Appellant's earnest counsel in the brief of appellant, states:

"There is only one question insisted on by appellant in this case, namely:

"(1) The court committed error in overruling the objections of the defendant to the testimony elicited by the State of the witnesses Lloyd Wilson and Dan Trammell.

"In both these instances the State was calling for a conversation between the defendant and the witness Trammell which did not embody an express admission of guilt, but which was an effort on the part of the defendant to compromise matters under discussion." Relative to the foregoing the record shows that appellant on cross-examination testified:

"I know Mr. Dan Trammell, but I never went to see him after this case came up and I had been arrested on a warrant in County Court about that calf; but Mr. Dan Trammell sent me word two or three times to come to see him. I did not go to see him. I struck him on the road. I did not see him on Sunday and then and there ask him, Mr. Trammell, to try to get that thing settled and get that case dismissed and I would pay the costs in my case and in the negro's case. Then the Solicitor asked the witness: Q. And didn't you see him the next day, which was on Monday, and again ask him to try to get that case settled and you would pay the costs?

"I did take out a warrant for Rob Feagan for stealing that yearling. The Solicitor then asked the witness: And after you took out the warrant for him you saw Mr. Dan Trammell on one Sunday and then asked him to try to get that case against you and the case against the negro, the criminal case, dismissed and you would pay the costs in both cases, didn't you?

"Witness then answered: No, Sir, I didn't do any such thing.

"The Solicitor then asked the witness: 'And...