Gaskin v. State , 42 Ala. App. 290 ( 1964 )

CATES, Judge

(concurring).

I vote to affirm only because of Gaskin’s admission to the State’s rebuttal witness, Dale, that he, Gaskin, had “got” the radio “out of Gordon’s Store.” This, I think, could reasonably be taken by the jury to mean “stolen.” No objection was taken to the admission of this statement.

The Second Edition of Webster’s New International Dictionary gives, under the transitive verb “get,” some twenty English definitions. There we find “get out” defined, inter alia, as “to take out,” “withdraw.”

Without this implication of thieving, no evidentiary weight can be attached to Gaskin’s having the radio in possession. In Sanders v. State, 167 Ala. 85, 52 So. 417, 28 L.R.A.,N.S., 536, Mayfield, J., writes:

“There was no proof that these particular goods in question were stolen from Horton or any other person. There was no proof that these or similar goods had ever been stolen from the alleged owner. The most that it showed was that a part of these goods, or goods like them, were once in the store of Horton. But there was no evidente' that they were ever stolen or thought 'to be stolen, other than the fact that they were found in defendant’s possession; and whether this was one day, or one or ■ two or three years, after they were in defendant’s store, did not appear. Nor was there any evidence tending to fix the time when the goods were in Horton’s store, or when defendant acquired them.

“To repeat, there was no evidence tending to show that the property was ever stolen by any one. The fact that it was ■once in Horton’s store, and was subse•quently found in the defendant’s possession, does not tend to show that it was stolen. There was not a particle of ■evidence to show that any theft was ■fever committed, as to the property in question, or as to any other. There was some evidence of the ‘corpus,’ but none of the ‘delicti.’ ”

Foster, J., in Dulaney v. Burns, 218 Ala. 493, 119 So. 21, discussing a claim of error because the jurors, on their own initiative, had consulted a dictionary, said :

“The definition of words in our standard dictionaries is taken as a matter of common knowledge, which the jury is .supposed to possess. * * * ”