Yarbrough v. State

• Decision Date: 11 June 1897
• Citation: 115 Ala. 92,22 So. 534
• Parties: YARBROUGH ET AL. v. STATE.
• Court: Alabama Supreme Court

22 So. 534

115 Ala. 92

YARBROUGH ET AL. v. STATE.

Supreme Court of Alabama

June 11, 1897

Appeal from circuit court, Limestone county; H. C. Speake, Judge.

Jordan Yarbrough and John Mitchell were convicted of burglary, and appeal. Reversed.

The appellants, Jordan Yarbrough and John Mitchell, were indicted, tried, and convicted for burglary. The facts of the case are sufficiently stated in the opinion. In addition to the charge copied in the opinion, the defendants requested the court to give to the jury the following written charge and separately excepted to the court's refusal to give both this charge and the charge copied in the opinion: (2) "I charge you that every one charged with the commission of an offense against the law is presumed to be innocent till his guilt is established, and the evidence sufficient to convict should be so convincing as to lead the mind to the conclusion that the defendant cannot be guiltless; and if upon the whole evidence, the guilt of the defendants is not established beyond a reasonable doubt, you must find the defendants not guilty."

R. A McClellan and J. J. Turrentine, for appellants.

Wm. C. Fitts, Atty. Gen., for the State.

HEAD J.

Appellants were tried for burglary of a smoke house, and convicted. The house entered belonged to Isom Malone. The burglary occurred on the night of Saturday, March 28, 1896. His testimony tended to show that 12 pieces of bacon, consisting of hams and shoulders, particularly described, were stolen; that the next morning he followed tracks from the place of the burglary a distance of some two miles northwest of his house that the defendants lived on the Lucas Ferry road, over a mile northeast of his house; that on the next Saturday night, a while after dark, he went to the house of the defendant John Mitchell, for the purpose of eavesdropping, that he might find out something about his lost meat; that, just as he got to the gate of the house, his brother-in-law, Wash Matthews, who lived a mile or more from there, happened to come up; that both of them took their positions near the house, at different places, when they heard the two defendants in a conversation or quarrel about a division of the meat, using language which tended to inculpate both of them. He testified that he did not know how Wash came to be there, nor where he had been. Witness then went back home, Wash going to preaching at the house of John's father, Dan Mitchell, about 400 yards off. Defendant Jordan lived upstairs in Dan Mitchell's house. His testimony further tended to show that on the following Saturday he, with a constable, and a search warrant, went to the house of defendant Jordan, and found in a box, in a room occupied by him and his family, two hams and two shoulders, which were a part of his lost meat, and corresponded well with meat he had just lost; that Jordan stated that he had not seen the meat, and did not know anything about how Isom's meat came there; and, if it was his meat, that his (Jordan's) wife and brother brought the meat there Wednesday before, he having bought four such pieces of Dick Sloss, his stepgrandfather; that no search was made of defendant John's house, because he was not at home, his house being locked up. Said Wash Matthews was introduced by the state, and testified that he lived about a mile south of the houses of the defendants. He corroborated Isom as to their meeting at the house of defendant John Mitchell, and hearing the conversation or quarrel testified to by Isom. As to his movements that night, he said he started from his home on foot to Mr. Stewart's store, where the Huntsville and Brown's Ferry and Lucas Ferry roads cross, about a mile north of defendant's house; that on his way he stopped at Dan Mitchell's house a half hour, while there going upstairs in the room occupied by Jordan Yarbrough; that after leaving there he went on until he had gotten within about a quarter of a mile of Mr. Stewart's store, when he stopped, turned around, and went back till he came to the house of the defendant John Mitchell, on the Lucas Ferry road, where he met up with Isom, when they heard the quarrel, etc., which took place immediately after he took his position at the house; that he then went about 400 yards from there, back, a second time, to the house of Dan Mitchell, the father of John, where religious services were going on, and that he remained at the services till they...