Bonham v. State , 65 Ala. 456 ( 1880 )

STONE, J.

— The criminating evidence in this case locates the act charged as a larceny, in October. Having introduced evidence of that particular act, the prosecution would be held to have elected to try the accused on that particular charge, and would not be allowed to shift the ground, and claim a conviction for another and distinct act. — Peacher v. The State, 61 Ala. 22. When the defendant, on cross-examination of the prosecuting witness, proved other acts of a similar character, committed by the defendant in July and August preceding, this did not authorize him to prove hÍ3 own declarations, made contemporaneously with the proved acts of July and August, tending to show those acts were not larcenous in their intent. — 1 Brick. Dig. 843, § 554; Chaney v. The State, 31 Ala. 342; Spivey v. The State, 26 Ala. 90; Taylor v. The State, 42 Ala. 529. To allow evidence of the defendant’s conduct on former occasions, to be given in exculpation of his later act for which he was being tried, would be as unreasonable, as to receive evidence against him of a former criminal act, as proof that a later act charged was itself criminal.

It is certainly true, that one tenant in common of an outstanding crop can not be guilty of larceny of any part, or the whole of the crop, thus held in common. It is not personal property. — Code of 1876, § 4355; Gregg v. The State, 55 Ala. 116; Smitherman v. The State, 63 Ala. 24. And parties can not be guilty of larceny of property, the ownership or title of which they honestly believe to be in themselves. — Morningstar v. The State, 55 Ala. 148; 2 Bish. Cr. Law, § 851; Kirksey v. Fike, 29 Ala. 206; 2 Whar. Amer. Cr. Law, § 1809.

In the testimony in this cause, there seems to have been no conflict. Kennedy, the prosecutor, and Bonham, the defendant, agreed to cultivate McWhorter’s land together; each to furnish himself, and, after the crops were gathered, the rent was to be first paid, and the remainder was to be equally divided between them. In June, the defendant ceased to work in the crop, and did not labor any more therein; and when urged by McWhorter, the landlord, to return, and aid Kennedy .in cultivating and harvesting the crop, he refused to do so, giving as a reason that he did not believe they would make any thing. This contract was not made by Bonham with McWhorter. Kennedy had taken the lease from McWhorter, and subsequently took Bonham into the contract. Now, if this testimony be believed, Bonham, the defendant, committed a breach of the contract, and that authorized Kennedy to treat it as at an end, and to adopt other measures for the cultivation of the crop. — Drake v. Goree, 22 Ala. 409. To test this principle, let us suppose that, after the maturity and harvesting of the crop, Bonham had sought to recover . a share of the crop. The contract between him and Kennedy being executory, he must needs have averred and proved the terms of the contract, and that he, Bonham, had performed his part of it, or had been prevented from doing so by the act of Kennedy. — 1 Brick. Dig, 393, §§ 228, 229, a; Ib. 394, § 230; Davis v. Wade, 4 Ala. 208. It is manifest that, on the testimony recited in this record, Bonham could have recovered nothing on the contract, and, therefore, he had no interest in the crop as property. If he could recover at all, which we do not intimate, it could only be compensation for his work and labor; which could only be a money recovery, and would give him no interest in the ownership of the crop. We think, however, if the testimony of the witnesses be believed, Bonham abandoned the contract, and all claim to share in the crop that might be grown.

Under these principles, the Circuit Court did not err in the charge given, nor in the refusal to charge as requested. The court correctly told the jury, that under the evidence, if believed, Bonham had no right, without Kennedy’s consent, to take any of the outstanding crop ; and the court rightly refused the charge asked, because it ignored a main feature of the evidence, and treated as unimportant Bonham’s causeless breach of his contract, which the testimony tended to prove.

The judgment is affirmed.