Carl v. State

HARALSON, J.

1. The indictment is in the Code form (No. 52), and is sufficient. — Brown v. The State, 100 Ala. 92. The sufficiency of these forms has been sustained too often to be noAV questioned by the courts. McCullough v. The State, 63 Ala. 75; Code, § 5050.

2. An investigation having been had before the grand jury which returned the indictment, no inquiry into the sufficiency of the evidence adduced before that body can be made upon a motion to quash the indictment, and such motion avus properly overruled. — Bryant v. The State, 79 Ala. 282.

3. -If the court erred in admitting evidence of confessions before evidence of the corpus delicti, such error Avas cured by the subsequent introduction of such evidence. — Floyd v. The State, 82 Ala. 16.

4. The identification of a person named as beneficiary in a Avill by parol evidence, is not a violation of the rule requiring the production of the Avriting; in fact such is generally the highest and 'best evidence of the fact. — Ferguson v. Rafferty, (Pa.) 6 L. R. A. 43, note.

5. While a Avitness not familiar Avith land may not knoAv Avho is in possession of it, he may testify to the negative fact that a certain person is not in possession, since such fact may Avell be Avithinhis knowledge, though he is not familiar Avith the land. — Mining & Man. Co. v. Warren, 91 Ala. 533.

The admission of parol evidence as to the ownership of land Ava-s without injury because aftemvards excluded.

6. This brings us to the consideration of the documentary title offered in evidence relative to the owner *103 sliip of the lands from which the timber is alleged to have been taken. The deeds from Templeton and wife to Catherine Bancroft, executrix, and Sibley and wife to C. M. Bancroft and the will of William Otis were not sufficient proof of ownership in the absence of evidence, showing that the grantors and the testator had possession of the lands, the title not being traced back to the government. — Florence etc. Asso. v. Schall, 107 Ala. 531. So with regard to the sheriff’s deed to Otis, there being no evidence of any judgment or execution nor possession on the part of the defendant in execution. — Barclay v. Plant, 50 Ala. 509; Reddick v. Long, 124 Ala. 260. The patent from the State to O. M. Bancroft conveyed no title upon which the prosecution could rely to prove ownership, unless the State is shown to have had title by either positive or presumptive evidence, since the sovereignty of the soil originally resided in the Federal Government. Knabe v. Burden, 88 Ala. 436. It is scarcely necessary to say that the OAvnership of the property must be proved as alleged in the indictment. It is sufficient, lroAvever, to allege such ownership in the party in possession and such possession is competent proof prima facie at least, of OAvnership. — Thomas v. The State, 97 Ala. 3; Matthews v. The State, 55 Ala. 65; Morris v. The State, 84 Ala. 446. The mere fact, hoAvever, that one not in possession of lands but claiming to OAvn them, instructs another Avho is also not in possession to look after the lands and keep off trespassers, is not sufficient proof of possession in the absence of the exercise of' some act of OAvnership. — Reddick v. Long, supra. The acts of OAvnerslup necessary to constitute possession will vary according to the character of the land, but such use must be made of it as its nature Avill permit. In other words “the possession must be by acts suitable to the character of the land.” — Bell v. Denson, 56 Ala. 444. Where there is no eAddence of possession either actual or constructive, as is the-case at bar, it is necessary to sIioav the legal title by proper deeds of conveyance and such deeds must be accompanied by evidence of possession on the part of the grantors or the title must be traced back to the government.^ — Florence etc. Asso. v. Schall, supra. As *104 there was no evidence of ownership shown either by possession or proper deeds of conveyance accompanied by acts of ownership, the affirmative charge should have been given at defendant’s request.' — Walker v. The State, 111 Ala. 29.

7. Where one, knowingly and willfully and without the consent of the owner thereof, enters upon the lands of another and cuts and carries away timber or rails therefrom with intent to convert the same to his own use, he is guilty of the offense condemned by the statute. Between a bare naked trespass, not committed by accident or mistake, nor under a bona fide claim of right, and larceny, the statute makes no distinction. In other words, such a trespass is denounced by the statute as larceny. The secrecy or publicity of the act can only be material when it is done under a claim of right. In this event, the secrecy or publicity of the act might be material in determining the bona fides of the claim and consequently the criminality of the act. — Newsom v. The State, 107 Ala. 133; Postal Tel. Co. v. Lenoir, 107 Ala. 640; Russell v. Irby, 13 Ala. 131.

8. It is certainly true that under an indictment charging only one offense, but one can be proved. — McCullough v. The State, 63 Ala. 75. When testimony is offered of several separate and distinct offenses and the prosecution has individualized or particularized one transaction by inquiring into the details thereof, it will be required on motion, to rely for a conviction solely upon such transaction, but the right to require the election must be exercised during the trial. — Peacher v. The State, 61 Ala. 22; Beasley v. The State, 59 Ala. 20. Where, however, guilt may consist either in one act or a series of acts but one offense has been committed and no case for election arises. — McCullough v. The State, supra. Applying these principles to the case at bar, Ave hold that if the defendant entered upon the land Avith intention to cut and carry away the timber, under the circumstances denounced by the statute, and pursued such intention until the same was effectuated, it is immaterial that it required a number of days, or perhaps weeks, to consummate the same. Such an act or series *105 of acts would constitute but one offense, and each day’s work would not be separate and distinct offenses. If, however, the evidence showed that there was an absolute and unqualified abandonment of the purpose after partial execution and the subsequent formation of a new purpose, though of a similar nature, followed, by another unlawful act, the offenses would be separate and distinct, and a case for election would, arise, if the indictment charged but one offense. These views dispose of every material question likely to arise upon another trial.

9. Applying them to the charges requested by appellant and refused, we hold that charge No. 16 ivas proper: ly refused. If it were a correct statement of the law of larceny generally, it is misleading when applied to the statutory offense for which appellant Avas indicted and convicted. Charges Nos. 17 and 18 Avere misleading and in conflict with the views here expressed, in that felonious intent and secrecy are not essential ingredients of the offense. Charge No. 24 was properly refused. The language in which it Avas couched is unintelligible. Charge No. 25 Avas erroneous and misleading. The word “willful” as used in the statute means either intentional or by design, regardless of the intent; that being covered by another part of the statute. Charge No. 26 Avas faulty in ignoring the absence of the ingredients of the offense as defined !by statute, and Avas calculated to mislead. Charges Nos. 28, 29, 31, 33 and 34 Avere erroneous, as they required the entry, cutting and carrying aAvay to have been accomplished by one continuous and uninterrupted act. Charge No. 38 is subject to the same vice as No. 16.

By virtue of the express language of the statute when an indictment charges an offense of which’ there are different degrees, there may be a conviction of any degree. Code, § 5306. ' The offense for Avhich the appellant Avas indicted is by the statute made grand or petit larceny according to the value of the property cut and carried away. — Code, §§ 5049-50. It folloAvs that the last charge requested by appellant, No. 39, Avas properly refused.

The rulings of the lower court were not in harmony *106 with this opinion and its judgment must he reversed and the cause remanded. Let the defendant remain in custody until discharged by due course of law.

Reversed and remanded.