Rikard v. State

BRICKEN, J.

(1)

The defendant, John Rikard, alias Rickard, was charged with the offense of murder in the first degree, and was tried and convicted of murder in the second degree and sentenced to the penitentiary for a period of 15 years, in the circuit court of Colbert county. This was a case of circumstantial evidence, and the prosecution was based principally upon the fact that, shortly after the death of Casey, the defendant was found to be in the possession of personal property which had been stolen, consisting of five head of cattle, which had belonged to deceased. Numerous objections were interposed during the trial and exceptions reserved touching the sufficiency of the testimony offered by the state, and a motion was made to exclude the testimony of the state on these grounds. The motion was properly overruled, and the court committed no error in refusing to give the general affirmative charge for the defendant.

“Possession of the fruits of crime, recently after its commission, is prima facie evidence of guilty possession; and if unexplained, either by direct evidence or by the attending circumstances, or by the character and habits in life of the possessor, or otherwise, may be taken as conclusive. This rule of presumption is not confined to the case of theft, but is applied to all cases of crime, even the highest and most penal.” — 1 Greenleaf, § 84;

Malachi v. State, 89 Ala. 142 , 8 South. 104 .

This presumption is one of fact, to be passed upon by the jury. — Cases supra.

When a larceny, robbery, arson, or even murder with robbery, has been committed, and soon afterwards goods which were stolen at the time the crime was committed are found in the possession of one not having the rightful custody, there is a *500 presumption more or less strong that the possession was a guilty possession, and that the custodian committed the crime of which the acquisition of the goods was a presumed concomitant. The better authorities hold that this is not a presumption of law, but one of fact. All agree, however, that if the discovery follow close upon the crime, the duty is cast on the custodian to explain how he acquired possession. Failing to do so to the reasonable satisfaction of the jury, or to generate a reasonable doubt of his guilt, he may be convicted, on this evidence alone, of the crime of which the theft was the motive, or concomitant.

— Malachi v. State, supra.

(2)

Under the above well-settled principles of law, the court did not err in overruling the motion to exclude the evidence of witness Brenneman, who had testified that:

“On Wednesday, the 28th of October, 1914, he saw the dedefendant driving J. B. Casey’s [deceased’s] cattle from the direction of Casey’s home towards Barton.”

— Martin v. State, 104 Ala. 71 , 16 South. 82 .

(3)

Dr. W. H. Green was shown to be an expert. He was therefore competent to express his opinion as to the place of entrance on Casey’s head of the shots that produced his death. The court therefore committed no error in overruling the objections to the questions propounded to this witness. Neither did the court err in declining to grant the several motions made by defendant to exclude this testimony. This disposes of the second, third, and fourth assignments of error adversely to appellant.

(4)

The objections raised to the testimony of witnesses Malone and Saxon were not well taken, and therefore without merit. Their testimony was admissible as a circumstance tending to show the defendant’s opportunity for the commission of the crime. The court did not err in letting it stand.

— Jarvis v. State, 138 Ala. 17 , 34 South. 1025 ;

Barker v. State, 126 Ala. 69 , 28 South. 685 ;

Spraggins v. State, 139 Ala. 95 , 35 South. 1000 .

(5, 6)

Assignments of error 7, 8, and 9, relating to the testimony of witnesses Hester, Inman, and Gibbs, are obviously without merit, and the court committed no error in its rulings thereon.

The court did not err in overruling the motion of the defendant to exclude the testimony of each witness examined by the state, separately, severally, and as a whole; and, under the evi *501 dence in this case, the court did not err in refusing to give the general affirmative charge for the defendant. — Authorities supra.

(7, 8)

The defendant offered only one witness in his behalf, Sam Gardner by name, who on cross-examination by the state, denied that he had any knowledge one way or the other as to whether Casey (deceased) would or would not sell or kill his cattle; that he had never tried to buy them and had never seen any one else try to buy them; in short, that he knew nothing of Casey’s cattle one way or the other, nor how Casey had regarded them. The defendant then closed his case, and the state offered in rebuttal, by consent of the court, and over the objection of the defendant, who duly excepted to the ruling of the court, witnesses Sherrill and Breedlove, both of whom were permitted, to testify, over the objection of the defendant, that, some time a few weeks before Casey’s death, they had tried to buy them on several occasions; and that each time Casey had refused to sell them, etc. This ruling of the court we must conclude was error, and error of'so serious a nature as will necessitate the reversal of this, case, for it is not contended that the defendant was ever present at any of the conversations testified to by these witnesses. The testimony therefore was clearly hearsay testimony, by which the defendant was in no sense bound. Neither was this testimony in rebuttal of anything brought out by the defendant, and therefore it was error for the court to permit the witnesses Breedlove and Sherrill to testify to these facts over the objection of the defendant.

The written charges refused to defendant present no new or novel points of law; and, as the case will have to be reversed, we deem it unnecessary to discuss them.

For the error pointed out, the judgment must be reversed.

Reversed and remanded.