Wood v. State , 18 Ala. App. 654 ( 1922 )

There were many objections and exceptions reserved during the trial, many of which are clearly without merit, and while we have read and considered them, as the law requires, it will serve the purpose of this appeal to treat only such exceptions as have been specifically pointed out in brief of counsel, who have therein presented every question of merit.

It is here insisted that the court erred in permitting the witness Naftel to refresh his recollection as to certain articles of merchandise, alleged to have been sold to one Moncrief, and from which package a part had been stolen; but no objection was made to the questions eliciting this testimony, or to the reading of the list of articles from the bill, until after it had been read to the jury, and the defendant objected to the witness reading from the bill anything other than the property alleged to have been stolen, and this objection of defendant was sustained by the court, and no exception is reserved to any ruling of the court pertaining to this evidence. There is, therefore, nothing for this court to review.

The argument of the solicitor as to how defendant came into the possession of the articles found in his store was not he statement of a fact outside the record, but was based upon his conclusions drawn from the evidence.

That one McQueen was the yard conductor, who had charge of the making up of the train, in which was the car from which the goods were stolen; that he could move them to any place he chose; that McQueen had sole control of the car at a time when the seal therefore affixed had been taken off, so that the door could be opened; that McQueen lived in the house with defendant near the railroad yards — might well have been left in as a part of the evidence in the case, in view of the fact that a part of the stolen property was found in the recent possession of defendant; but the court ins his general charge to the jury, by explicit and ample instructions, excluded this testimony from the jury, thereby leaving defendant without exception.

We think there is sufficient evidence to go to the jury as to whether the goods stolen were taken from the railroad freight car, but whether that is so or not is not material to a conviction under the second count of the indictment. Under that count, the proof of the corpus delicti does not depend upon the place from whence the goods were stolen, or who stole them. That they were stolen by somebody is all that is required to establish the corpus delicti, and there was ample evidence for this purpose. Leverett v. State, ante, p. 578, 93 So. 347.

The corpus delicti having been proven, the recent unexplained possession of some of the stolen goods coupled with the character of the merchandise, the unusual manner in which they came into his possession, his evasive statements concerning them, together with the attending surrounding circumstances, were sufficient facts upon which to predicate a verdict of guilt.

We find no reversible error in the record. Let the judgment be affirmed.

Affirmed.

On Application for Rehearing.