Oddo v. State , 152 Ala. 51 ( 1907 )

DOWDELL, J.

The indictment in this case was drawn under section 5054 of the Criminal Code of 1896, and on which the defendant was convicted. There was evidence on the part of the state tending to show that the • personal property described in the indictment had been stolen from the alleged owner. It was competent for the state to show by the witness Levi Pratt, who participated in the larceny of the property, that he (witness) delivered this property to the defendant. The defendant’s counsel asked this witness on cross-examination to tell the jury how much he had paid the Bessemer Furniture Company and Mr. Mitchell; the Bessemer Furniture Company being the alleged owner of the goods. The court sustained an objection to this question interposed by the state. There was nothing prejudicial to the defendant in this ruling of the court. The only theory upon which this evidence might become competent would be in the assessment of the value of the stolen property as costs against the defendant under section 5052, when the property stolen is not restored to the owner. In this case there was no such assessment of value against the-defendant.

It was not competent for the defendant to show, by his witness Childers, a statement by the defendant’s wife that she, and not her husband, bought and received the property in question. The defendant proposed to show by his witness Mike Gallows that he (witness) bought some furniture from the wife of the defendant. On objection of the solicitor this evidence was excluded by the court. In this ruling there was no error, as the evidence offered was wholly immaterial.

The defendant requested the court to give the general affirmative charge, which was refused, and in this there was no error, since there was ample evidence upon which the jury might find the defendant guilty.

■ The second charge requested by the defendant in writing, if for no other reason, was properly refused upon the ground of its being confused and with a tendency to mislead the jury.

' The part of the oral charge excepted to by the defendant, in which the court undertook to state the law’’ of the case as to what constituted the offense of receiving, concealing, or aiding in concealing stolen property, omitted a constituent element of the offense, namely, “not having the intent to restore it (the property) to the owner.” This was error.

The written charge No. 2, given at the request of the state, invaded the province of the jury in assuming that there was a concealment of the property. The giving of this charge was error.

There was no error in the giving of written charges Nos. 1 and 3, requested by the state.

For the errors pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Tyson, O. J., and Haralson and Denson, JJ., concur.