Martin v. State , 104 Ala. 71 ( 1893 )

BRICKELL, C. J.

1. The condition of the defendant and his family, whatever it may have been, prior or subsequent to the larceny, unconnected with other evidence, would not have been relevant and admissible; from that condition, as a separate, distinct fact, no reasonable presumption or inference could be drawn as to his guilt or innocence. — 2 Bish. Crim. Proc., §748. The larceny, that the money of the prosecutor had been stolen, there was evidence tending to prove. There was also evidence having a tendency to fix upon the wife of' the defendant, the stealing of the money, which was a considerable sum, and to fix upon the defendant, the guilt of receiving a part of. it, knowing it to have been stolen. The evidence introduced against the objection of the defendant, tended to show that, soon after the larceny, there was a marked change in the condition of his family, in their mode and style of living, the expenditure of more money than they had been accustomed to expend, and that from living upon rented premises, he had erected or was engaged in the erection of a dwelling house, and its cost. We think the evidence was clearly admissible ; such a change of condition is at all times a fact of significance ; within the circle of acquaintance, it attracts attention, and invites more or less of remarks, and of inquiry, as to the causes from which it may proceed. If the change of condition is sudden, it is usually accompanied with a sudden improvement of fortune. It is said in Burrill on Criminal Ev., 457 : “In most cases, the fruits of the crime themselves are so well concealed from view by the perpetrator, as to permit no immediate evidence against him. There is nothing visible in his possession, which can be directly traced to or connected with the offense. But they sometimes betray themselves by their consequences, as by a sudden and material change in life or circumstances, indicating, beyond question, the recent receipt of money or property from some quarter. Where a person, previously known to be poor, is found shortly after a robbery, larceny or murder, in the possessidn of considerable wealth, it is always a circumstance of suspicion ; and, when corroborated by others, of material weight in connecting the crime with its perpetrator. ” And upon authority it seems well settled that such change of condition and circumstances, is a fact proper tobe submitted to the jury in connection with the other evidence, and may raise a presumption of guilt. — Com. v. Montgomery, — 11 Met. 534, s. c 45 Am. Dec. 227; State v. Grebe, 17 Kansas. 458 ; State v. Bruse, 106 N. C. 792; Perin v. State, 52 N. W. Rep. 526. The fact is open to explanation, and all unfavorable inferences arising from it may be removed by tracing the change to any source consistent with the hypothesis of innocence.

2. We deem the evidence touching the defendant’s habits, or want of habits, of industry, relevant and admissible. If he was not a steady worker, and did not work half his time, any inference or probability that he acquired by his labor the money', there was evidence tending to trace to his possession, was lessened.

3. There was error in the admission of the evidence referring to the defendant’s gambling. When the gambling occurred, whether prior or subsequent to the commission of the offense with which he is charged, what was its character, whether it was a single instance, or there were repetitions of* it, was not shown. If all these facts had been shown, the fact of his gambling was incapable of affording any reasonable inference or presumption as to any material fact or inquiry involved in the issue of his guilt or innocence. — Brock v. State, 26 Ala. 104; Whart. Criminal Ev., § 29.

4. The examination in chief and the cross-examination must be confined to matters relevant to the issue. True, on cross-examination, it may be proper to elicit any and all facts showing “the situation of the witness with respect to the parties and to the subject of the litigation, his interest, his motives, his inclinations and prejudices, his means of obtaining a correct and certain kuowlege of the facts to which he bears testimony, the manner in which he has used these means, his powers of discernment, memory, and description.” — lGreenl. Ev., § 446. In this respect there may be a greater latitude of interrogation than on the examination in chief. The cross-examination must nevertheless be confined to facts relevant the issue — facts irrelevant and • immaterial cannot be the matter of the examination. — Stoudenmeier v. Williamson, 29 Ala. 558. Where Mrs. McDonald kept her money was wholly irrelevant and immaterial, and there was no error-in refusing to permit the inquiry to be made of her. If the interrogation had been permitted, the answer of the witness would not have been capable of contradiction. For the rule is well settled, that if a question, which is collateral or irrelevant to the issue, is put to a witness, his answer cannot be contradicted by the party asking the question. — 1 Greenl. Ev.,§ 449; Blakey v. Blah\key, 33 Ala. 611.

5. The first charge requested by the defendant was properly refused. It is of doubtful meaning, and without explanation had a direct tendency to mislead and confuse the jury ; besides it invaded the exclusive province of the jury, to determine the weight of the evidence. If it were not obnoxious to these objections in view of the evidence, it does not assert a correct legal proposition. It is the settled law of this State, that the recent possession of stolen goods, imposes on the possessor the onus of explaining the possession ; and, if he fails to make a reasonable explanation, raises a presumption of guilt, which will support a . verdict of conviction. Cooper v. State, 87 Ala. 135 ; Malachi v. State, 89 Ala. 134. If there was evidence tending to connect- the defendant with the larceny, the recent, unexplained possession of the goods, it may be, would raise the presumption that he had stolen them, rather than that he had received them knowing them to have been stolen. But where the evidence, though proving the larceny, does not connect him with its commission, tending to fix the guilt of it upon another, and he has the recent possession of the goods, if ho makes no reasonable explanation of the possession, the same presumption should be applied, which would be applied if the possession had remained with the first taker. There is no unfairness in the presumption ; it is reasonable. The receiver can as readily explain how and from whom he acquired possession, as could the first taker ; the explanation which . would be reasonable, removing the presumption in the one case, would have the same effect in the other. In either case,the presumption grows weaker as the time of possession recedes from the time of the original taking. — Goldstein v. People, 82 N. Y. 231; People v. Weldon, 111 N. Y. 569.

6. The second charge requested was. properly refused. The instructions of the court to the jury are not fragmentary. The charge given by the court, ex mero mota, and the charges which may be given on request are an entirety, and must beso taken and construed. Under the statute, charges given on request must be in writing ; and if from any cause the court apprehends that the jury might disconnect and attach more of importance to. them, than to the other instructions, it is the duty of the court to say to the jury, that they are to be considered in connection with the oral charge, as constituting the law of the case. The duty of the jury in this respect is so obvious, so well known, that whether such an instruction shall be given in a particular case, must rest largely in the discretion of the trial court, and the refusal of the instruction must be a glaring breach of the duty of the court, and of prejudice to the one party or the other, before an appellate tribunal would interfere with its exercise. The instruction requested had an immediate tendency to impress the jury, with the thought, that .more of importance should be given the charges in writing than was given the oral charge ; it had the like tendency to break the charge into .fragments, dissociating its several parts, which should have been regarded as an entirety, constituting the law of the case.

For the error pointed out, the judgment must be reversed and the cause remanded ; the defendant will remain in custody until discharged by due course of law. •

Reversed and remanded.