Burney v. State , 87 Ala. 80 ( 1888 )

STONE, C. J.

Defendant was indicted under section 3784, Code of 1886, for receiving and concealing stolen money, knowing it to be stolen, and “not having the intent to restore it to the owner.” The money was alleged to have been stolen from Sikes,'about Christmas, 1887. An accomplice was the witness by whom the most important criminating facts were proved. Another witness, Coskrey, was examined, with a view of corroborating the testimony of this accomplice. He testified that, about the time of the larceny, he, the witness, was at Mr. Sikes’ mother’s, about fifty yards from Mr. Sikes’ back gate, and heard Maria, the accomplice, say to defendant, in reply to something said by defendant, which witness did not understand, “There aint no more to get.” Maria then, walked off from defendant, and witness heard no more. It was then about dusk.

Under our statute, “a conviction of felony can not be had on the testimony of an accomplice, unless corroborated by other evidence, tending to connect the defendant with the commission of the offense.” — Code, 1886, § 4476, and note. The court charged the jury: “If you believe from the evidence that Frank Coskrey heard a conversation at or near the gate between "W es. Burney and Maria Sharp, the accomplice, and heard Maria, to what he said, reply, ‘There aint no more to get;’ this is corroborative evidence, tending to connect defendant with the commission of the offense, if committed.”

It will be seen that this remark — all that the witness Coskrey is claimed to have heard — does not mention money, nor expressly refer to it. That may have been her meaning, and if so, it is not only not improbable, but very likely, that his remark, not heard by the witness, referred to the same subject, and that his request was that she should bring him money. If so, this would “tend to connect defendant with the commission of the offense.” But, to have this effect, there was an inference to be drawn, and only the jury could draw that inference. The charge under discussion was a charge on the effect of the evidence; and such charge should never be given, when a material inquiry of fact rests in inference. — 3 Brick. Dig. 110, §§ 48, 53, 55, 56. The court erred in giving this charge.

The indictment in this case is bad. It should have averred the number and denomination of the coins, or of some of them, or that the same were to the grand jury unknown. Such have been the rulings of this court; and as this requirement is both reasonable and easily conformed to, we are unwilling to depart from it.—State v. Murphy, 6 Ala. 845; DuBois v. State, 50 Ala. 139; Grant v. State, 55 Ala. 291; Whar. Cr. Pl. § 218.

Reversed and remanded.