Allen v. State , 134 Ala. 159 ( 1901 )

HARALSON, J.

1. The State challenged one of the twelve men on the jury, leaving eleven. The court then instructed defendant to pass oni the eleven remaining, as to whether he was satisfied with them or not. The defendant objected to this, and moved the court to have the jury filled to twelve men before he was required to pass on any of them. The court overruled the motion, and in this there was no error. — Wilson v. State, 31 Ala. 371; Barker v. Bell, 49 Ala. 284; Schieffelin v. Schieffelin, 127 Ala. 14.

2. After the defendant had challenged two of the jurors, leaving ten bn the panel, one of the ten made known to the court that' he was employed by the Western Railway of Alabama, the alleged owner1 of the property charged to have been stolen by defendant. The court, thereupon, told the juror to stand aside. The defendant objected, and excepted to the ruling. The court then replied : “If you object, I will let him remain on the jury,” arid told the juror to take his- seat, which he did, the State having previously announced its satifaction with the juror. The defendant then offered to challenge the juror, because he -was employed by the Western Railway of Alabama, and the court refused, to allow him to challenge him for this cause. The defendant by his objection to the excusing of the juror waived, objection to him for this cause, anol could not, afterwards, complain for not being allowed to challenge him for the same cause. His objection to' the juror being excused by the court, was the expression of a willingness and desire for him to remain on the jury, and he could not, afterwards put the court in error for having done what he requested; no new cause, or other reason for challenge, having been brought to light.

3. The witness, Easterly, for the State, testified that he saw Asberry Roberson and defendant, on the day the tobacco is said to have been stolen, and in about a half an hour, the defendant came out with three boxes of tobacco under his arm,, and went in an easterly direction. He was tiren asked by the solicitor: “When the defendant came back, did you see him with any whiskey?” The defendant objected for illegality and immateriality. If the evidence sought was jyrima facie irrelevant, at the time the question caled for it, this was not reversible error, if its relevancy was made to appear from its connection with evidence subsequently introduced, which was done. — Lawson v. State, 20 Ala. 66; Scott v. State, 30 Ala. 503.

4. The witness for the State, Seals, testified to a fact tending to show defendant’s guilt. The defendant, on tire cross, asked him: “Is it not.a fact, that Asberry Roberson, who was your foreman at the time, told you, that, if you .would swear that the defendant took the tobacco, that you could have a job under Mr. Jones?” The witness replied, thaitl he did not, but that Roberson told him, that he was going to quit working for Mr. Jones. The solicitor then asked: “What did Asberry Roberson say in that same conversation was the reason he was going to quit?” Objection was interposed by defendant, for illegality and immateriality.' The court overruled it, upon the ground that the question called for the balance of a conversation, a. part of which had been brought out by the defendant. In this there was no error. The State had a right to all that was said at the time by Roberson, a part of it having been brought out and appropriated by defendant. — McLean v. State, 16 Ala. 672, 677.

5. The defendant asked the witness, Roberson, if it was not a fact that he and defendant went to Kelly’s bar -that day after the whiskey and brought a bottle of if there, and the witness answered, that they did not. Defendant then asked him: “Is it not a fact that you and defendant, about the time you were working for Mr. Jones in November, 1901, often went to Kelly’s bar after whiskery?” The purpose of the question, as stated' by counsel was, “to slvow that the whiskey that defendant had on that day was bought at Kelly’s bar in the presence of Asberry Roberson, and that it was the habit and custom of defendant and Roberson to do.” This evidence, if allowed, did not tend to show that this whiskey was bought from Kelly.

6. Charge 1 requested by defendant was properly refused. The Raihvay Company, as the proof showed, was in actual possession of the property as bailee, at the time of the larceny, and Schloss & Kahn, its consignees, were not, and had never been in possession of it. Ownership was properly laid in the company. — Jones v. State, 13 Ala. 153; Fowler v. State, 100 Ala. 96.

Charge 2 was likewise properly refused. — Amos v. State, 123 Ala. 51.

Affirmed.