Fowler v. State , 100 Ala. 96 ( 1893 )

HEAD, J.

The testimony of Charles L. Phillips, in reference to the ox horns said to have been found, in connection with other evidence, tended to prove the corpus delicti, and was admissible.

It was immaterial whether Phillips had paid, or offered to pay, Malone & Collins for the oxen or not. If he was in possession of them, at the time of the alleged larceny, either as a conditional purchaser or a bailee, the ownership was properly laid in him. It is not disputed that he was in possession in the one or the other 'capacity. The ruling of the court on this point was free from error.

The first and second charges given at the instance of the State are legal truisms which need no discussion. They were properly given.

The analysis of charge 3, requested by the State, is, that if the ox of Phillips was butchered near the house of Jesse Spigner, that fact tends to show where the horns which came from that ox were found by a person who was after-wards discovered in possession of them. There was evidence tending to show that the horns from Phillips’ ox, which had been butchered near Spigner’s house,-were seen in the possession of a person who had gotten them from one Martin ; but there was no proof tending to show when, where or how Martin got them. That he found them at all is a pure assumption. It would have been competent to prove that the horns of Phillips’ ox were found at the place where the slaughter of an ox had occurred, near Spigner’s house, to aid the other testimony going to show that the slaughtered ox was that of Phillips ; and e converso, if the place where the horns toerefound., had been the subject-matter of investigation by the court, it would have been competent to prove the place where Phillips’ ox was slaughtered, in aid of other evidence tending to show tuhere the horns toerefound,. But such was not the matter of investigation. The defendant was not indicted for putting the horns at a particular place. He was on trial for larceny of the ox. The charge was inapt and unnecessary, as well as it assumed that the horns had been found, and ought to have been refused.

'Whatever there is good in the first charge requested by defendant is rendered improper, as an instruction, by its association with the matters of argument contained in the charge.

The defendant’s second charge is bad for several reasons. . It was not essential to the completion of the larceny that the ox was hilled. The charge was misleading in other respects.

The third, fifth and sixth charges of defendant’s series are nothing but arguments.

The jury have nothing to do with the. theories the parties may derive from the evidence, unless they find support in the evidence. It is improper to submit such to the jury in any form. That body must themselves examine the evidence and determine what theories are deducible from it. They are not compelled to consider the theories of the parties, as charge four requested by defendant would require.

The seventh charge was rendered bad by the requirement that the ox must have been stolen after the 6th of September, 1892, in order to a conviction.

We have examined the record of the organization of the grand jury which found this indictment and find it fatally efective. Under the law obtaining in Geneva county, grand jurors may be householders or freeholders. They are not required to be both.—Code, § 4299. . Again, the law provides, in. substance, that if fifteen grand jurors are hot present and accepted the court must order the sheriff to summon twice the number necessary to complete the panel to fifteen, and from the persons so summoned must be drawn the necessary number.—Code, § 4338. In the present instance, there was a deficiency of two persons, and the court committed the error of ordering only two summoned; and the further error of requiring that they should be both householders and freeholders. An indictment found by a body so organized is invalid.

For the errors pointed out, the judgment of the Circuit Court is reversed and the cause remanded. Let the defendant remain in custody until legally discharged.

Beversed and remanded.