Wright v. State

• Court: Alabama Court of Appeals
• Writing for the Court: MERRITT, J.
• Citation: Wright v. State, 17 Ala.App. 621, 88 So. 185 (Ala. App. 1920)
• Decision Date: 07 December 1920
• Docket Number: 6 Div. 747
• Parties: WRIGHT v. STATE.

88 So. 185

17 Ala.App. 621

WRIGHT v. STATE.

6 Div. 747

Court of Appeals of Alabama

December 7, 1920

Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.

Claude Wright was convicted of receiving stolen property, and he appeals. Reversed and remanded.

Denson & Ivey, of Birmingham, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

MERRITT J.

The defendant was indicted under sections 6417, 7324 and 7329, of the Code of Alabama (1907), and was convicted under the fifth count of the indictment, charged with buying, receiving, or concealing stolen property, drawn under section 7329 of the Code, and was sentenced to imprisonment in the penitentiary for a minimum term of three years and a maximum term of five years, from which judgment and sentence the appeal is prosecuted.

The witness Sternberg testified that he checked freight out of cars for the Louisville & Nashville Railroad at Birmingham that on one occasion he checked certain goods out of a Louisville & Nashville car from a way bill, the goods coming in from Cincinnati, the bill having been made out there. The witness did not attempt to testify as to the correctness of the bill, and of course, the mere fact that he used it for checking purposes was competent. Moreover there was no contention by the state that the goods alleged to have been stolen, were taken from this car, but from a Central of Georgia car to which the goods were claimed to have been transferred.

The witness, Claude Hose, a witness for the state, testified on direct examination among other things:

"But I do know I put that particular flour on a truck and that he went in the direction of this Central of Georgia car, and he brought the slip back and the truck was empty."

On redirect examination he testified:

"I sent this flour over there, but I don't know--I sent flour over there. I knew it was flour when I sent it over there and I sent it to that car."

On recross he testified further as follows:

"I check flour every day. We send flour over to the Central of Georgia every day. *** I don't remember what kind of flour it was; I have no independent recollection about that flour I am testifying about, no more than the waybill shows. I did not make that waybill, had nothing to do with making it, and I don't know who made it, nor where it was made. I don't know whose flour it was. I have no independent recollection at all concerning that. I don't have any independent recollection about what I am testifying, no more than the waybill shows, that is all I have."

It clearly appears from the above that the testimony of this witness should have been excluded. He had no independent knowledge of the facts, but what he said was predicated on a waybill that he did not make, nor did he know anything about. Perry v. State, 155 Ala. 93, 46 So. 470.

It was competent for the witness Drake to testify as to his seal record concerning the car in question, he having first testified that he made the record himself.

We have given the most careful consideration to all of the testimony in this case, and are driven to the conclusion that the general affirmative charge as requested by the defendant should have been given as to count 5, the count upon which he was convicted. We are not unmindful that the corpus delicti may be proved by circumstantial evidence, and if the evidence adduced affords an inference that a larceny has been committed the question of its sufficiency is for the jury ( Smith v. State, 133 Ala. 146, 31 So. 806, 91 Am.St.Rep. 21), yet the circumstances must be proven by legal evidence (Perry v. State, supra). The state sought to show that the goods were stolen from a Central of Georgia Railroad car, alleged in said fifth count of the indictment to be the personal property of Walker D. Hines, Director General of the Central of Georgia Railroad Company, a corporation. We put out of view the question as to whether the ownership of the goods was correctly laid in the Director General of Railroads.

We find...