Dupree v. State , 148 Ala. 620 ( 1907 )

HARALSON, J.

— G. D. Owens, a witness for tbe state, who was an employe at tbe store of Greil Bros. Company, — whose store in Montgomery was alleged' to have been. broken into,—testified to facts tending to ' show the burglary of said store. He described tbe condition of tbe back door, on tbe outside and on tbe inside of tbe store, and the lock that was on it. He was asked by tbe defendant on tbe cross: “Is it or not possible for this’lock (which was on tbe door inside), to have been broken this way from tbe outside of tbe store?” also, “Is it not a fact, it was a physical impossibility for a person to have stood on tbe outside of tbe Greil Bros. Company store, and broken that lock from the outside?” and still again, “Is there any way- from tbe outside to have broken that lock at tbe time, or after -the witness saw it securely locked”? These were questions proper for tbe determination of tbe jury, and they were as competent to answer them as tbe witness.—Orr v. State, 117 Ala. 69, 23 South. 696; Hill v. State, 137 Ala. 66, 34 South. 406.

' Tbe witness, Henley, for tbe state, testified, that be was an employe of tbe Louisville & Nashville Railroad Company, as' nigbt porter; that early in tbe morning after tbe nigbt when said store was burglarized, some pistol shots were fired at or near the Louisville & Nashville freigbtbouse, close to said store, separated by a narrow alley, and he went down near tbe freight depot, and saw défendant there; and, at tbe place where defendant was standing, was piled tbe goods described as having been taken from said store; that tbe goods were piled in a nook of said freight depot, almost opposite tbe place where tbe door of Griel Bros. Company’s store was found broken open. Tbe solicitor asked tbe witness, “after a proper predicate 'was laid,”—as the record' recites,—“What did Will Dupree (the defendant) say to you?” An objection, for incompetency and immateriality, was overruled. Wbat the predicate was, is not shown in the record. It must be presumed that the predicate was sufficient to authorize the admission of the statement of the witness of the declarations of defendant, tending to show his confessions and admissions of guilt. What the defendant said to the witness was admissible, as- tending to show that he was the guilty agent, or was concerned in burglarizing the store.

The solicitor asked this witness: “Was that the Sunday morning on which the negro Cohn was killed and Policeman Ragland was shot?” This evidence was intended to identify or fix the time of the commission of the offense, and was expressly allowed for that purpose, but later was excluded by the court on motion of the defendant.

The objection to the testimony of the witness McDade, came too late.—Coppin v. State, 123 Ala. 58, 26 South. 333.

The motion of the defendant to exclude certain portions of the evidence of this witness was properly overruled. Whether the circumstances deposed to by him proved the larceny, was a question for the jury. It afforded ground for inference, that the offense had been committed.

As to exceptions' numbered 9 and 10, it is sufficient to say, that the movements of the defendant on the night of the commission of the offense, were not improperly shown.—Spraggins v. State, 139 Ala. 102-3, 35 South. 1000.

A sufficient predicate for the admission of confessions was shown, and the evidence of confessions tending to show that defendant Avas guilty was properly admitted.

Defendant’s counsel insist that charge 1 should have been given on account of the failure to prove the venue of the. crime. “It is not necessary to prove in express terms, that the offense was committed in the county where the indictment was found; evidence from Avhich the jury could so infer is sufficient.”—Tinney v. State. 111 Ala. 74, 20 South. 597. There was abundance of evidence by several witnesses, that the alleged crime was committed in “Montgomery, in the city of Montgomery," and the union depot of the Louisville & Nashville Railroad Company, in said city, and certain prominent streets therein, such as Monroe, South Court, etc., etc., are referred to in the evidence. From these facts, we can judicially know, that the city of Montgomery is in Montgomery county in the state of Alabama.—Levy v. State, 133 Ala. 192, 31 South. 805; Boardman v. Ewing, 3 Stew. & P. (Ala.) 293; 17 Am. & Eng. Ency. Law (2nd Ed.) 906.

As to the sufficiency of proof of the corpus delicti, it may be said that direct and positive evidence is not indispensable. “Like any other fact, the subject of judicial investigation, it may be proved by circumstantial evidence,” and is for determination by the jury.—Vaughan v. State, 130 Ala. 29, 30 South. 669.

There is much evidence from which the commission of the crime could be reasonably inferred, if it was not positively shown;

The defendant asked numerous other charges which were refused. We must decline to discuss them. Defendant’s counsel declined to do so. We have read them in consultation and discover no reversible error in any of them.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.