Johnson v. State , 100 Ala. 55 ( 1893 )

HARALSON, J.

1. When this case was here, on another appeal, the ownership of the corn alleged to have been stolen was laid in W. T. Merriwether, and on substantially the same evidence as that presented in this record; the court held that the ownership was improperly laid in him, but should have been laid in Mrs. Merriwether.—Johnson v. State, 13 So. Rep. 377.

We adhere to our former ruling, and hold that the ownership was properly laid in Mrs. Merriwether. The statement of Mr. Merriwether, that the corn was his, was the mere expression of an opinion, accompanied by a statement of the facts on which he based, it, which show that the ownership of the land and the unsevered crop thereon, as a part of the land, was property laid in Mrs. Merriwether.

2. There was no error, therefore, in refusing the three first charges requested by defendant, nor in giving the charge, “that under the testimony, the corn alleged to have been stolen, was the property of Mrs. Merriwether.” No corn is alleged to have been stolen, other than that which was a part of an outstanding, unsevered crop, on the land of Mrs. Merriwether. Corn, while on the stalk, and not severed from the realty, partakes of the realty, and by the common law was not the subject of larceny, it is only made so by statute. But, at the moment it is severed from the realty, it becomes, and continues to be, personalty, and is not the subject of grand larceny, under the statute which prohibits the stealing of a part of an outstanding crop, nor under an indictment for stealing a part of such a crop, can one be found guilty of petit larceny; yet, if the stolen corn or cotton has been previously severed from the realty by a separate act, and is afterwards stolen by the defendant, he may be prosecuted for larceny, either grand or petit; and in prosecutions of this character, a count may properly be added for larceny in the common form, so as to meet any case the proofs may develop.—Smitherman v. State, 63 Ala. 26; Pinckard v. State, 62 Ala. 167; Gregg v. State, 55 Ala. 116.

There is evidence in this record tending to show, that the corn which was stolen, if. any, consisted of “ears that had been blown down and torn from the stalks.” If this were true, and the other facts in the case showed a felonious taking, the defendant could not be convicted under this indictment.

3. We will not consider the fourth refused charge, based on other phazes of the evidence, since it is confused and incomplete, and was for that reason, if for no other, properly refused.

4 There was no error in allowing the witness, Merriwether, to testify that the title to the land was in his wife. This was but another form of stating the collateral and collective fact, of the ownership of the land, which was properly admissible.— Woodstock Iron Co. v. Roberts, 87 Ala. 437; Daffron v. Crump, 69 Ala. 77; Elliott v. Stocks, 67 Ala. 291.

5. The bill of exceptions purports to set out all the evidence. There was no proof that the offense was committed in Montgomery county. No instruction was given or refused, which involved an inquiry into the sufficiency of the evidence to authorize a conviction, nor as to the proof of venue. The failure of the bill of exceptions to show that the venue was proved, will not, under such a presentation of the record, work a reversal of the judgment of conviction.—Hubbard v. State, 72 Ala. 164; Clarke v. State, 78 Ala. 434; Bonden v. State, 91 Ala. 61.

6. It may be stated generally, as a sound legal principle and as correct practice, that instructions by the court to the jury, should be given in open court in the presence of the parties to the suit. A judge should never have any private communication, either verbal or written, with the jury, after they have retired. He may, in the exercise of proper discretion, recall them into open court, for the purpose of explaining instructions already given, or to give other and further instructions, or to allow other evidence, which .has been overlooked in the progress of the trial, to be given in, or to answer any proper questions about the case which the jury for their satisfaction or enlightenment may desire to propound to the court; but, in all such instances, what is done, should always be done in the presence of the prisoner, and also of his counsel, if practicable.—Cooper v. State, 79 Ala. 54; McNeill v. State, 47 Ala. 498; Collins v. State, 33 Ala. 433; Proffatt on Jury Trials, § 348; 2 Thompson on New Trials, § 2361; 11 Am. & Eng. Encyc. of Law 257.

In having the written communication with the juryman, Doll, without the consent of the defendant, the court committed an error, for which the cause must be reversed.

Reversed and remanded.