Hicks v. State , 99 Ala. 169 ( 1892 )

HEAD, J.

The question whether the accused, who makes himself a witness in his own behalf, under the statute authorizing him so to do, is subject to impeachment, as other witnesses, by the introduction by the State, upon the proper predicate therefor, of evidence of contradictory statements previously made by him, is not an open one. The following authorities settle that he is subject to such impeachment: Clarke v. State, 78 Ala. 474; 87 Ala. 71; Norris v. State, 87 Ala. 85; Cotton v. State, Ib. 103; Rains v. State, 88 Ala. 91; Mitchell v. State, 94 Ala. 68.

There was no error in the refusal of the court to exclude the evidence that a five-dollar gold-piece was found in defendant’s pocket at the time of the arrest, and that defendant handed to Albert Laughter ten silver dollars at or about that time. While these pieces of money were not the stolen coins, yet, in connection with the other evidence, his possession of them and.his conduct with reference to the silver dollars were circumstances proper to be considered by the jury, who might, under all the facts and circumstances shown in evidence, have legitimately inferred that he had exchanged the stolen coins, or some of 'them, for those found in his possession. For the greater reason, was there no error in the motion to exclude the evidence that he handed to Laughter a ten-dollar gold-piece at or about the time of the arrest. The stolen coins consisted of four ten-dollar gold-pieces.

The first charge requested by defendant was abstract. This is not a case dependent for conviction upon mere evidence of possession by the accused of the stolen property. There was other evidence tending to prove the defendant’s guilt of the burglary and larceny. The charge requested was, therefore, improper.

The second charge requested was also improper. It assumes that none of the money found in defendant’s possession was part of the stolen money. It was for the jury to say whether the ten-dollar gold coin he had was one of those stolen. Moreover, there was other evidence in the case besides the bare possession cf the money, which had to be considered in determining whether defendant should satisfactorily account for that possession, and these were considerations for the jury. The charge clearly invaded the province of the jury.

There is no error in the record, and the judgment is affirmed.