Jackson v. State , 167 Ala. 77 ( 1910 )

McCLELLAN, J.

The property involved in the offense charged was a shotgun, alleged to have been, in November, 1906, shipped by express from Iron City, Tenn., to W. A. Porter at Russellville, Ala. The evidence tended to show that it was stolen, while at Sheffield, Ala., en route to destination. In February, 1908,. the house of William Jackson, the prisoner’s father, and their common abode, was searched, and a shotgun was. found in a closet therein, which gun, the evidence tended to show, was the gun shipped as indicated. It was further open to the jury to find that the prisoner as well as his father was favorably situated, by reason of the place of employment, to have taken the gun from the custody of the express company. It further affirmatively appears from the evidence that when the gun was found, as stated, the prisoner said, and so without any inducement usually rendering a confession inadmissible, that the gun was his. The witness Shelton stated that the prisoner (on the occasion of the search and finding of the gun) said: “That is my gun;” that “I (he, the witness) says, “Where did you get- it?’ and he did not answer.” The explanation of his possession of the gun offered by the prisoner was that his father, William Jackson, bought the gun “some time before Christmas, 1906,” from a party not identified, and gave it to him (the prisoner).

“It is the settled law of this state that the recent possession of stolen goods, imposes on the possessor the onus of explaining the possession; and, if he fails to make a reasonable explanation, raises a presumption of guilt, which will support a verdict of conviction. If there was evidence tending to connect the defendant .with the larceny, the recent, unexplained possession of the goods, it may be, would raise the presumption that he had stolen them, rather than that he had received them knowing them to have been stolen. But where the evidence, though proving the larceny, does not connect him with its commission, tending to fix the guilt of it upon another, and he has the recent possession of the goods, if he makes no reasonable explanation of the possession, the same presumption should be applied, which would be applied if the possession had remained with the first taker. There is no unfairness in the presumption ; it is reasonable.” This quotation is taken from Martin’s Case, 104 Ala. 71, 78, 16 South. 82. See, also, Boyd’s Case, 150 Ala. 101, 43 South. 204.

The basis of the evidential (only) presumption stated is that the goods were “stolen.” The vidence here tended to establish that fact. If they so found, then the inquiry was, whether, from the explanation offered in connection with the indicated presumption, and both phases of this inquiry were matters for the jury’s consideration and final finding, the defendant was guilty. —Thomas’ Case, 109 Ala. 25, 19 South. 403.

The qualifying term “recent” has reference to the possession of the goods as that is related to the time of the commission of the larceny. — Thomas’ Case, supra; 1 May. Dig. p. 582 et seq. The prisoner himself fixed his possession of the gun which the evidence tended to show was the stolen gun, at “some time before Christmas, 1906,” a point of time referable to “recently” after the larceny the evidence tended to show.

As readily appears, on the whole evidence, the guilt vel non of the accused was for the jury’s determination. So the affirmative charge to acquit was not his due.

The appellant complains, in 23 errors assigned, of that many errors of the trial court. They have all been carefully considered, in the light of the record and the extended argument of appellant’s counsel. No prejudicial error appears.

As to the ruling on evidence complained against, all of the facts and circumstances attending the shipment of the package, its appearance, what it “appeared” to contain, the proximity of the appellant and of his father to the place from which the gun, the evidence tended to show, was taken, their opportunity to have taken the gun, the search for and finding of the gun as before indicated, the statement of the appellant that he claimed the gun, the question asked by Shelton as to where he got it, and his “silence” when explanation was directly invited, and the evidence, even though a matter of opinion, of identity of the gun found and that alleged to have been taken, were admissible and in this case were properly admitted on the trial. ■

The complaint that the court erroneously interfered with the right of the prisoner’s counsel to cross-examine one of the state’s witnesses cannot avail. It does not appear from the bill of exceptions, if indeed that would alter the matter, that the witness availed himself, or obeyed the direction of the court to consult papers showing the number of the gun, and hence does not appear that his recollection, sought to be tested by the cross-examiner, received any aid from that source.

Let the judgment be affirmed.

Affirmed..

Dowdell, C. J., and Simpson and Sayre, JJ., concur.