Opinion
2 Div. 804.
August 28, 1951.
Appeal from the Circuit Court, Dallas County, W.E. Callen, J.
Pitts Pitts, Selma, for appellant.
Si Garrett, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
A prospective juror is not incompetent to sit on the jury in the trial of a particular offense merely because he is a member of an association organized for the prosecution or prevention of such offenses. 50 C.J.S., Juries, § 229, p. 976; Alabama Fuel Iron Co. v. Powaski, 232 Ala. 66, 166 So. 782; Rose v. Margro, 220 Ala. 120, 124 So. 296; Carnaggio v. State, 143 Miss. 694, 109 So. 732; Boyle v. People, 4 Colo. 176, 34 Am.Rep. 76; State v. Van Hoozer, 192 Iowa 818, 185 N.W. 588. Appellant was shown to have been in possession of the recently stolen yearling. His explanation of such possession presented a question for the jury. Evans v. State, 246 Ala. 328, 22 So.2d 98; Richardson v. State, 29 Ala. App. 403, 197 So. 92; Driggers v. State, 29 Ala. App. 167, 193 So. 878; 6 Ala. Dig., Larceny, 68 (3). Inculpatory statements made by appellant were properly admitted in evidence, proper predicate having been laid. Questioning by officers, while appellant was under arrest, did not render the confession involuntary. Smith v. State, 253 Ala. 220, 43 So.2d 821; Logan v. State, 251 Ala. 441, 37 So.2d 753. Refusal of charges stating correct propositions of law is not error where they are otherwise covered. Smith v. State, supra; Code 1940, Tit. 7, § 273.
The defendant in the court below was indicted and convicted for the larceny of a bull yearling, the property of George Hicks.
At the outset of the trial the appellant attempted to challenge for cause certain prospective jurors for the reason it was established that they were members of the Cattlemen's Association.
In the recent case of Finley v. State, Ala.App., 52 So.2d 167, we held that because a prospective juror was engaged in the business of cattle raising for a livelihood did not disqualify him to serve on a jury in a case in which the prosecution was based on larceny of a cow. The instant case presents no stronger imputations of bias.
Ante, p. 56.
See also Ala. Fuel Iron Co. v. Powaski, 232 Ala. 66, 166 So. 782.
It appears from the evidence that the yearling in question was in the pasture of the mother of the accused. This because the owner had given permission for defendant's mother to milk his cow while the yearling was a suckling.
Without the knowledge or consent of George Hicks the appellant, in the nighttime, took the yearling from the pasture and delivered it to the stockyards in Demopolis. There it was sold at auction and the defendant received the check for the amount of the sale.
When first questioned by the officer the appellant disclaimed any knowledge of the theft. At a subsequent time he admitted the facts we have delineated.
The defendant did not testify in his own behalf. His mother testified to the effect that she gave her son permission to sell one of her yearlings and the wrong animal was taken from her pasture through mistake.
In this state of the record it is evincingly clear that a jury question was posed as to the guilt of the accused.
The affirmative charge in defendant's behalf was properly denied, and the motion for a new trial was overruled without error.
The fact that the accused was under arrest when he made the alleged confession did not, for this reason solely, render the statement involuntary. Fitzhugh v. State, 35 Ala. App. 18, 43 So.2d 831; Smith v. State, 253 Ala. 220, 43 So.2d 821.
Refused charge numbered 7 is elliptical. Miller v. State, 15 Ala. App. 4, 72 So. 506; York v. State, 34 Ala. App. 188, 39 So.2d 694; Sims v. Kent, 221. Ala. 589, 130 So. 213.
Refused charge numbered 9 is not based on the evidence as the law requires. Edwards v. State, 205 Ala. 160, 87 So. 179; Hubbard v. State, 35 Ala. App. 211, 45 So.2d 795.
The other charges refused to the defendant were substantially covered by given written instructions or the oral charge of the court. Title 7, Sec. 273, Code 1940.
The record in this case is free from prejudicial error.
The judgment below is ordered affirmed.
Affirmed.