Jackson v. State , 18 Ala. App. 259 ( 1921 )

The appellant was convicted of grand larceny and sentenced to the penitentiary for a term of not less than three nor more than five years.

The demurrers to the indictment were properly overruled. Owens v. State, 104 Ala. 18, 16 So. 575; Leonard v. State,115 Ala. 80, 22 South, 564.

It is the general rule that, if the defendant desires to avail himself of the right to have the answer of a witness to a question excluded, he should object to the question. It does not appear that objection was made to the questions that called for the statements made by the witness Walker that he "had just loaned some money," and "you saw me put that roll of bills in my pocket, and I want you to search me to see that I haven't got a dollar on me and you all saw me put it in there." And for this reason, if for none other, the court properly overruled the motion to exclude such answers.

It was proper for the state to show that the parties were playing poker at or about the time of the alleged larceny; the testimony further showing that the money alleged to have been stolen was some of the money that was won and lost in the game. It was also proper for the state to show that Walker, who is alleged to have lost the stolen money, also lost just about the same time a check for $30 which he claims he had in his possession just about the time the money is alleged to have been stolen; the testimony afterwards developing that at a later day the defendant had possession of and had the particular check cashed. It is true the check is not embraced in the property alleged to have been stolen covered by the indictment in this case, and as a general rule evidence of a distinct similar offense is not receivable against a defendant, but the exception is that such evidence is admissible to show intent, "to establish the identity of the defendant, to make out the res gestæ or to make out a chain of circumstantial evidence of guilt in respect to the act charged." Gardner v. State, (Sup.) 87 So. 888;¹ Id.,87 So. 885;² Mason v. State, 42 Ala. 532; Yarborough v. State,41 Ala. 405; McIntosh v. State, 140 Ala. 137, 37 So. 223; Scott v. State, 150 Ala. 59, 43 So. 181.

Written charges 1 and 2 were properly refused for the reason that they are not predicated on a finding from the evidence in the case.

Written charge 3 is covered by other given written charges.

Written charge 4 was substantially covered by the court's oral charge.

We find no error in the record, and the judgment appealed from is affirmed.

Affirmed.

¹ 205 Ala. 60.

² 17 Ala. App. 589.