Opinion
6 Div. 960.
February 2, 1943.
Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler, Judge.
John Rutland was convicted of petit larceny, fined one hundred dollars and sentenced to twelve months hard labor for the county, and he appeals.
Affirmed.
The following charges were refused to defendant:
3. I charge you gentlemen, that as a matter of law, if you believe after considering all the evidence, that the bag recovered from Estelle Tennile, was a stolen bag from the Birmingham Trunk Factory, Inc., and she bought this bag, after it was stolen, knowing it to be stolen, or having a reasonable cause to believe it was stolen, then she would be an accomplice of defendant, and under the law you can not convict the defendant upon the uncorroborated testimony of an accomplice. Therefore he could not be convicted upon her testimony alone.
4. Gentlemen, it is entirely a matter for you to decide, as to the value of the property alleged to have been stolen, or alleged to have been bought, received or concealed by the defendant, if it was stolen, therefore, if you believe after considering all the evidence in this case, that the value of the Gladstone Bag, alleged to have been stolen, if same was stolen, was of a value, to be fixed by you at less than $5, then you would assess a fine against the defendant, only, in such amount as you decide, not to exceed $500. I charge you gentlemen that you may only find the defendant guilty of petit larceny and not assess a fine against him if you fix the value of the property alleged to have been stolen at less than $5.
Morel Montgomery, of Birmingham, for appellant.
The jury had the discretion of fixing the value of the property at four dollars and fifty cents, and having done so, properly found defendant guilty of petit larceny. Storrs v. State, 129 Ala. 101, 129 So. 778. The evidence of one of the officers showed that a hope and promise were held out to defendant to induce the purported confession. Said confession should not have been allowed to go to the jury. Ballard v. State, 225 Ala. 202, 142 So. 668; Lewis v. State, 220 Ala. 461, 125 So. 802; Felder v. State, 17 Ala. App. 458, 85 So. 868; Anderson v. State, 104 Ala. 83, 16 So. 108; Lester v. State, 170 Ala. 36, 54 So. 175. The court erred in sending the jury out when defendant was making proof that a promise of hope or reward was held out to him. Burton v. State, 107 Ala. 108, 18 So. 284. To prove larceny the State must show the ownership of the property, that it was taken, and with felonious intent. Mooneyham v. State. 28 Ala. App. 228, 182 So. 78. Charge 4 correctly states the law, and should have been given. Code 1940, Tit. 14 § 334. Charge 3 was erroneously refused. Bailey v. State, Ala.App., 8 So.2d 202; Carr v. State, 28 Ala. App. 466, 187 So. 252. Probation of defendant should have been granted as moved by him.
Wm. N. McQueen, Atty. Gen., and L.S. Moore, Asst. Atty. Gen., for the State.
The question of the admissibility of a confession and its voluntary nature is exclusively addressed to the court. Ray v. State, 29 Ala. App. 382, 197 So. 70. When confession is admitted over objection of defendant, the presumption is in favor of the correctness of the trial court's ruling on appeal, and the appellate court will not reverse unless the record affirmatively shows there was manifest error in admission of the confession. Caraway v. State, 20 Ala. App. 362, 101 So. 912; Fincher v. State, 211 Ala. 388, 100 So. 657; Curry v. State, 203 Ala. 239, 82 So. 489. If jury was not present when evidence as to voluntary character was received, defendant, after confession was admitted, could introduce evidence thereto as bearing upon weight and sufficiency of the confession. Underhill's Criminal Evidence, 4th Ed., 279; Browne v. State, 92 Fla. 699, 109 So. 811. Though confession may be obtained by influence of threats or promises, if they disclose the extraneous facts which show their truth and tend to prove the commission of the crime these facts may be proved and so much of the confession as relates strictly to the facts discovered may be proven. Pressley v. State, 111 Ala. 34, 20 So. 647; Curry v. State, supra; Burton v. State, 107 Ala. 108, 18 So. 284; Owens v. State, 215 Ala. 42, 109 So. 109. Charge 4 is either misleading, elliptical, argumentative or an incorrect statement of law. Its refusal was not error. Ware v. State, 12 Ala. App. 101, 67 So. 763; Moon v. Benton, 13 Ala. App. 473, 68 So. 589; Marbury Lumber Co. v. Heinege, 204 Ala. 241, 85 So. 453; Standard Cooperage Co. v. Dearman, 204 Ala. 553, 86 So. 537. If defendant desired the court to instruct the jury that the jury may or may not assess a fine against defendant in event of his conviction for petit larceny he should have requested the court in writing to do so, and such charge must contain a correct statement of law. Lashley v. State, 25 Ala. App. 115, 141 So. 717; Code 1940 Tit. 15, § 336. The evidence was sufficient to submit the question of defendant's guilt to the jury and the affirmative charge was properly refused. Lee v. State, 20 Ala. App. 334, 101 So. 907; Burrage v. State, 113 Ala. 108, 21 So. 213; Frost v. State, 124 Ala. 85, 27 So. 251.
The conviction was for petit larceny. The defendant did not testify. There was uncontroverted evidence that he confessed his guilt to the police officers. After conviction, he requested probation which was denied. In the report of the probation officer, the following appears:
"This man has been working at the Birmingham Trunk Factory for about 14 years. During 1939 and 1940, he systematically stole merchandise from his employer, mainly concealing smaller articles in larger trunks and luggage. He then disposed of this merchandise at bargain prices.
"Subject admits that he took these things but minimizes the number. He claims that he was worked 14 to 16 hours a day with no overtime, and used this as a means of rectifying his remuneration."
The article for which he was here convicted of stealing was a Gladstone bag — a suit case — of the Birmingham Trunk Factory, Inc.
The insistence that the corpus delicti was not sufficiently shown to warrant proof of the confession is not sustainable.
The law does not require that the corpus delicti be proved by direct and positive evidence. Circumstantial evidence may afford satisfactory proof thereof, and if from the facts and circumstances adduced only a reasonable inference arises that the crime has been committed, this is sufficient to justify the admission of the confession. Ratliff v. State, 212 Ala. 410, 102 So. 621; Hill v. State, 207 Ala. 444, 93 So. 460; Patterson v. State, 202 Ala. 65, 79 So. 459; Matthews v. State, 55 Ala. 187, 195, 28 Am.Dec. 698; Mason v. State, 16 Ala. App. 405, 78 So. 321; Crofton v. State, 27 Ala. App. 589, 176 So. 832; 22 C.J.S., Criminal Law, § 839, p. 1471 et seq.
The hereafter stated rule, quoted approvingly in the Ratliff case is applicable here, and controlling. "It must be considered as settled that inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti." (Emphasis supplied.) Hill case, supra, page 446, of 207 Ala., page 462 of 93 So.
The learned discussion of this rule by Mr. Justice Gardner (now Chief Justice) in the Ratliff case fully sustains our holding here.
Consonant with this principle, therefore, it is our conclusion that here the corpus delicti was sufficiently proven to authorize the introduction in evidence of the extra-judicial confession of the defendant. There were facts and circumstances — though perhaps inconclusive — independent of the defendant's confession affording a just inference that the theft had been committed.
Helton was the witness (State's) who testified that the defendant confessed to him and his fellow officer, Weir, that he had stolen the suit case. His testimony, showing the voluntary character of the confession, was sufficient predicate for its admissibility. Ray v. State, 29 Ala. App. 382, 197 So. 70, certiorari denied 240 Ala. 73, 197 So. 73.
That the other officer, Weir (defendant's witness), testified that defendant was told that "if he would help us break the case and get the stuff back to the house, it was up to the house, whatever they wanted to do, and that we thought it would help him to help those people" — if construed (which we do not) to be such inducement as to render the confession involuntary — in no way precluded Helton (who contended that no inducements of any kind were made to the defendant) from giving testimony of the confession. This contradiction between the two officers did not render Helton's testimony of the confession inadmissible, but might have been a proper subject of inquiry by the jury as to the weight and effect to be given such evidence. 6 Ala. Digest, Criminal Law, 741(3); Johnson v. State, 242 Ala. 278, 5 So.2d 632.
This is because the admissibility of the confession and whether voluntary are legal questions for the court. Ray case, supra.
Appellant, in brief, argues that "the Court * * * erred by sending the jury from the Court room, out of the presence of the Court and out of the hearing of the witness H.H. Weir, when proof was being made by defendant, that a promise or hope of reward had been made to defendant." This argument is manifestly untenable because — other reasons aside — no exception was reserved (or objection made) to this action of the court. If the jury was not present when the testimony of Weir, relating to the voluntary character of the confession, was received, and such testimony was desired to be presented to the jury, the defendant had the privilege of later offering it for their consideration. (Underhill's Criminal Ev., 4th Ed., pp. 557 et seq., Sec. 279), and thereby invoking the ruling of the court on the question. He obviously waived his right to later claim error by his tacit consent to the stated action of the trial court.
Refused Charge 3 was an incorrect statement of the law. Among other vices, it did not limit the rule of application to felony cases. Code 1940, Title 15, Section 307; Head v. State, 27 Ala. App. 152, 167 So. 349. See, also, Strickland v. State, 151 Ala. 31, 44 So. 90, where a substantially similar charge, even when so limited, was condemned by the Supreme Court.
Charge No. 4 was correctly refused because it was clearly misleading and confusing, especially the last sentence thereof which could easily be construed as meaning that the jury could only find the defendant guilty of petit larceny. There were also other misleading tendencies not requiring discussion.
The punishment imposed was within the limits prescribed by law and, no clear showing having been made of any abuse of discretion by the trial judge in the matter, to disturb it here would be unauthorized. Mary Sales v. State. Ala.App., 12 So.2d 101; Wood v. State, 28 Ala. App. 464, 465, 187 So. 250; Johnson v. State, 24 Ala. App. 291, 135 So. 592; 24 C.J.S., Criminal Law, p. 781, § 1878.
Ante, p. 19.
The Probation Act, itself, is answer to the final insistence of defendant that we should do something about the order of the trial judge refusing the defendant probation. Section 20, Title 42 of the 1940 Code provides that "the action of the court in granting or refusing probation shall not be revisable by any other court."
The whole case considered, we do not find any error authorizing a reversal. The judgment is therefore affirmed.
Affirmed.