Tinney v. State , 111 Ala. 74 ( 1895 )

McOLELLAN, J.

While it was not in terms preved that the offense charged in the indictment was committed, if at all, in Jefferson county, there was evidence from which the jury might well have so inferred. ' The general charge requested by the defendant, on the theory that no evidence of venue had been adduced, was, therefore, properly refused.

The proceedings and judgments before the justice of the peace and, on appeal, in the circuit court in the action of detinue prosecuted by Herring, in whom property is laid by the indictment here, against Tinney, were matters inter alios acta, and foreign to the issues in the present case between the State of Alabama and said Tinney.

The value of the hogs alleged to have been stolen by the defendant .was not pertinent to any issue in the case. In legal contemplation, however, the defendant is held to have assented to evidence of value being received since he made no tenable objection to it. The objection he did make, that the judgment in the detinue suit was the best evidence of value, was obviously untenable, and at the same time a waiver of all other objections.

We are unable to see that the fact that the defendant had in his possession, or sold and delivered to Pearson, along with the two hogs alleged to have been stolen by Mm, six others, some of which were without ear-marks and other of which had marks differing from those of the two involved in this case, had any legitimate tendency to prove that he feloniously took and carried away the two hogs in question ; and we are also unable to see that this testimony was not of injury to him on the trial. For the error committed in receiving this testimony, the judgment of the criminal court must be reversed. The cause is remanded. . ,

Reversed and remanded.