Bryant v. State , 116 Ala. 445 ( 1897 )

HARALSON, J.

At common law, larceny is considsidered as committed in every county or jurisdiction into which the goods may be carried by the thief. ‘ ‘The legal possession of them still remains-in the true owner, and every moment’s continuance of the trespass and felony amounts to a new caption and asportation.” — 2 Russsell on Crimes, 283. Consequently, it has been held in this State, that when goods are stolen in one county and carried by the thief into another county, or he causes them to be so carried, and he there exercises dominion over them, this constitutes larceny in the latter county, and he may be there prosecuted and convicted.— Whizenant v. The State, 71 Ala. 383; Kidd v. The State, 83 Ala. 58. Section 3723 of the Criminal Code of 1886, which gives jurisdiction in such cases in either county, is an affirmation, and not an enlargement of the common law rule on the subject. — Smith v. The State, 55 Ala. 59.

The indictment in this case, following form 51 of the Criminal Code of 1886, charges the larceny as having occurred in Baldwin county. It was not lacldng in any necessary averment of a larceny' in that county. It then charges defendant, with having brought the property stolen into the county of Mobile. The indictment might have charged the larceny as having been committed in Mobile, omitting all reference to the commission of the crime in Baldwin, and on proof of the facts averred in this indictment, the defendant might have been convicted in Mobile, where, as alleged, she carried 'the property. There was no error in overruling the demurrer to the indictment. — Rapalje on Larceny, §124; Jones v. The State, 53 Ind. 235.

The evidence tended to show that the defendant stole the ring, its diamonds and setting in Baldwin county, as charged, and carried the same into Mobile county; that defendant was found in possession of a ring in the latter county which was brass, but with a gold setting, from which the central gem had been removed, and a piece of glass been substituted therefor, with five diamonds arranged around it so as to form a cluster, with one of the diamonds in the setting missing ; that the ring stolen had seven gems, a central and larger one than the six others that surrounded it, and that the brass portion of the ring so found in her possession was not the property of Mrs. Cirlot, — the party from whom it was alleged the ring had been stolen,— but that the setting in said ring and the diamonds were her property. The solicitor, after the evidence for the State had closed, offered in evidence the ring that had been found in possession of defendant in Mobile, and which she delivered up, and it was admitted against a general objection of the defendant. In this there was no error. The facts made it evidence of crime, the weight of which was for the jury. — Thornton v. The State, 113 Ala. 43; Watkins v. The State, 89 Ala. 83; Young v. The State, 68 Ala. 569.

The testimony of defendant tended to show that about three weeks before her arrest, one Robert Singleton,who had since died, loaned her the ring which she had on- at the time she was arrested ; that she-'did not deny having the ring when arrested, and it was taken from her, but that she turned it over to Mr. Cirlot and told him at the time that it was not her ring, but one that Robert Singleton had loaned her, and she made the same statement to the officers having her in charge when they were taking her to the guard house.' ' The chief of police testified to this statement. The evidence further tended to show that Robert Singleton had loaned defendant the ring one day when he met her on the street; that he told her that it was his wife’s ring; that she had known him all her life, and he had never visited her at her house, and had never been to see her in Baldwin county. The defendant proved by Benny Robinson that he had seen defendant about three Aveeks before her arrest with a ring that looked like the one offered in evidence on the trial, and proposed to prove by said witness what, at the time, the defendant said she was doing with the' ring and wrhere she got it, — whose property she said it Avas, and if she did not say to the witness, that the ring was loaned to her by a man named Robert Singleton. On objections raised by the solicitor, the court refused to allow the witness to answer either of the questions propounded to elicit this evidence. In this the court erred. It is inferable that the ring inquired about, as to which defendant’s declarations were made to the witness, was the ring she Was found in possession of, and for which she was indicted for stealing; and these declarations, made while in the possession of the property, at the time and under the circumstances shoAvn, Avere admissible, as explanatory of her possession. — Smith v. The State, 103 Ala. 40, and authorities there cited.

The indictment, as will be obsei-ved, in its three counts, containing the necessary averments for larceny, charges, (1) , th'at fthe defendant stole in Baldwin county and carried into Mobile, a diamond ling of the value of $75; (2) , that she stole in Bahhvin a gold ring with a diamond setting, and brought such diamond setting, of the value, of $50, into the county of Mobileand (3), that she stole in Baldwin a gold ring with, diamond setting, of the value of $75, and brought the diamonds, which were in said setting, of the value of $35 into Mobile county. In other words, the diamond ring, diamond setting from such ring, and the diamonds themselves,- which were in, and taken from the setting of such ring, are the subjects of the larceny separately charged in the respective counts. The indictment was properly framed to meet the varying forms the evidence might assume touching the property which, after it was stolen, was brought as alleged into Mobile county; and in its different shapes, the evidence tended to support one or the other or all of these charges. Having due regard to the different counts, each .charging a larceny, many of the charges asked appear to be improper, and were rightly refused. These, on account of their great number, will not be separately discussed and passed on, but we confine ourselves to such as appear to be proper to notice.

The 14th charge asked by defendant and refused, assorts a correct legal principle, -and should have been given. — Prater v. The State, 107 Ala. 27; Howard v. The State, 108 Ala. 572, 577; 3 Greenl. Ev., § 29.

^ The 16th charge requested by defendant is a copy of a charge we approved in Newsom v. The State, 107 Ala. 133, 138; Goldsmith’s Case, 105 Ala. 9.

Charge 18 appears to be free from error. — Newsom’s Case, supra.

Charge 17 was condemned in Horn v. The State, 102 Ala. 145.

Charge 19 is an extract from the opinion of Stone, C. J., in Johnson v. The State, 102 Ala. 18, 19, and was a part of an argument employed by.the learned judge for the purpose in hand. The charge is subject to the vice of being argumentative.

Charge 20 was properly refused. The unexplained possession of property does not raise the presumption that the property was stolen. There must be other evidence of the corpus delicti; and when this has been shown, the actual unexplained possession of the recently stolen goods, is a fact from which the jury may infer the guilt of defendant. The declarations of a defendant when found in possession of the stolen property, explanatory of his possession, are for the consideration of the jury together with all the other evidence in determining the question of his guilt or innocence. — Orr v. The State, 107 Ala. 35; Smith v. The State, 103 Ala. 40; Underwood v. The State, 72 Ala. 220.

The other refused charges not considered were prop-. erly refused.

Reversed and remanded.