Buchanan v. State , 109 Ala. 7 ( 1895 )

HEAD, J.

Indictment for larceny ffom a storehouse of sundry articles of merchandise, the property of John Shurbett. Shurbett testified that on February 4th, 1895, there was stolen from his storehouse some eighty or ninety dollars worth of merchandise, consisting of ten pieces or bolts of cloth, being calico, domestic and cotton checks, one and one-half dozen pairs of jeans pants, one dozen pairs of suspenders, some ladies’ hose, gents’ half hose, one dozen balls of thread, about twelve yards of elastic, several papers of pins, several papers of shoe tacks, one dozen hair combs, one and one-half dozen cotton shirts, some tobacco, and a part of a sack of green coffee; that on April 8th following, he, with one Lee, a constable, and others, went with a search warrant, to defendant’s house — about seven or eight miles from witness’ store, — and there found four or five small children’s dresses, made of red figured calico, a quilt top which contained pieces of the same kind and quality of calicoes, one or two hair combs and seven balls of ball thread. They broke open defendant’s trunk (he being absent), and found therein one pair of dark gray jeans pants, two cotton shirts, one red cotton handkerchief, three or four papers of shoe tacks, three or four papers of pins, two pairs of new suspenders, one pair of ladies black hose, and one pair of men’s socks. One of the shirts had been worn, the other not. They also found in the house of defendant’s mother, which was a few hundred yards from, and in sight of, defendant’s house, a dress pattern of calico, a hair comb and a piece of elastic. All these goods, found at both places, were produced by the witness in court, and offered in evidence by the State. There was objection to the evidence as to the goods found at defendant’s mother’s house, and we think the court erred in admitting it. The only further identification of these goods with the goods stolen made by the witness Shurbett was that “from the color and quality of the goods so found at the house of defendant he would identify them as the goods stolen from his store on the said night of the 4th of February.” It appeared in evidence that Shurbett had purchased the goods which had been stolen from another merchant in the county — one H. B. Guy. Guy being introduced, produced in court certain articles from his store, among them pants, which he testified corresponded in color, quality of goods and lot number with the pants shown him as having been found at defendant’s house, and that the shirts and suspenders, also shown him, corresponded, in color and quality, with the shirts and suspenders he had brought from his store; that he sold Shurbett pants, shirts, suspenders, calico, shoe tacks, ball thread, hair combs, ladies and gents hoes and elastic, which corresponded in color and quality with the goods shown to witness, and identified as having been found at the houses of defendant and of defendant’s mother. Afterwards, the State was permitted to intro-, duce in evidence the goods found, and also those produced in court by Guy, for the purpose of comparison, as the means of establishing the identity of the goods found with those stolen from Shurbett. We are aware of no principle of law which authorizes such a comparison by the jury, and have been referred to no authority, and can find none, which justifies it. The court erred in admitting the goods produced by Guy. Aside from the similarity of the articles, shown by their general description, there was no evidence going to identify the goods found with those stolen,' except the statement of the witness Shurbett that “from the color and quality of the goods so found at the house of defendant, he would identify them as the goods stolen from his store on the said night of the 4th of February.” It will be observed that this statement is no more than the expression of the opinion of the witness, based upon the color and quality of the goods, that the goods found at defendant’s house were those which had been stolen from him. The defendant introduced a witness — a merchant of the county of large experience in the business — and asked him, if, in his judgment, it was possible for a merchant to identify his goods from color and quality only. To which he replied that in his judgment a merchant could not so identify goods. On motion of the State, this evidence was excluded. We think the defendant was entitled to have the jury consider this opinion of the witness, who was expert in such matters, in connection with the opinion of Shurbett that he could identify his goods from color and quality ; and that the court erred in excluding the evidence.

When a defendant testifies on the trial of the cause in his own behalf, he subjects himself to impeachment as any other witness. — Dolan v. The State, 81 Ala. 11; Mitchell v. The State, 94 Ala. 68; Jones v. The State, 96 Ala. 102; and later cases. The witness Dunlap, who was introduced to impeach defendant’s witness John Turner, stated that he lived, for the last ten or twelve years, about twenty-five miles from Turner, and that the only way he knew the character of said Turner in the community where he now lives was that a year or two ago a man who lived about twelve miles from Turner told him that said Turner was the same old lying John Turner. If this is all the witness knew of Turner’s character, he was not competent to speak on that subject.

The charge given by the court ex mero mokt, to which exception was reserved, clearly invaded the province of the jury. It was : “That to justify a conviction on circumstantial evidence, it was not necessary that the circumstances be as strong as the positive testimony of a single creditable witness; that if a charge had been asked asserting that, before a conviction could be had on circumstantial evidence, the evidence should be as strong as the positive' testimony of a single creditable witness, the court would have refused the charge.” Neither the direct instruction set forth in the .first sentence, nor the supposed charge set forth, argumentatively, in the second sentence of this instruction is a matter for the court. It is for the jury to say how strong the circumstances must be, in order to satisfy their minds, beyond a reasonable doubt, of the defendant’s guilt. Banks v. The State, 72 Ala. 522.

Let the defendant remain in custody until discharged by law.

Reversed and remanded.