Harrison v. The State

Harrison v. The State. Indictment for Larceny. 1. Caption of indictment; description of court. — It is not a valid objection to an indictment, which is shown by the record to have been found by a grand jury at a regular term of the “City Court of Selma,” that the words “City Court” only, instead of “City Court of Selma,” are inserted in its caption. 2. Contradictory exculpating declarations. — Contradictory declarations, made by the defendant to different persons, apparently with the view of exculpating himself, and accounting for his possession of stolen property, are not governed, as to their admissibility, by the rules which apply to confessions. 3. Disqualification of witness on ground of infamy. — At common law, a person was rendered incompetent to testify as a witness, by a conviction and sentence for arson; but, if the common-law rule prevails here, a person is not brought within it, who is only shown to have been convicted of the statutory offense of “arson in the third degree” (Eev. Code, § 3699), which might not be arson at common law. Feom the City Court of Selma. Tried before the Hon, JoNA, HaraIsoN. The indictment in this case, which charged the defendant with tbe larceny of a bog, tbe personal property of Ales. H. Averett, is shown by tbe record to bave been found by a grancHury, regularly impannelled, at a regular term of tbe City Court of Selma; but it was entitled thus: “ State of Alabama, Dallas county; City Court, January term, 1877.” Tbe defendant demurred to tbe indictment, “on tbe ground that it does not sufficiently set forth the name of the court, in this: that it styles the court ‘City Court,’ when the true name of tbe court is ‘ City Court of Selma.’ ” The court overruled the demurrer, and tbe defendant then pleaded not guilty. “On tbe trial,” as the bill of exceptions states, “Alex. H. Averett was introduced as a witness by tbe State, and testified, that he was the owner of a sow and pigs, which were on bis plantation in said county last fall; that the defendant resided and worked on said plantation; that in November of last year one of the pigs was missing, but it came back to tbe plantation a few days afterwards; that it was marked when it came back, though it was not before-it was missed; that Emanuel Overstreet came to bis bouse a few days after-wards, looking for a pig; that be (witness) went with said Overstreet to his lot, and looked at said sow and pigs, including tbe one so marked; and that tbe defendant, on the night of the same day, came to bis house, and told him --■. The defendant here objected to tbe witness being allowed to testify as to any confession of the defendant, because no predicate was laid; but the court overruled tbe objection, and the defendant excepted. Thereupon, in answer to a question propounded by tbe court, tbe witness stated, that be made no promise or threat to tbe defendant, and that what the defendant then said was of his own accord, and without any inducement held out to him. In answer to questions propounded by tbe solicitor, tbe witness then proceeded as follows: ‘The defendant told me, when be thus called me out of my bouse, that he sold the pig to said Overstreet for one dollar and a half, that he bought it from Brown Bates, and that he was willing to pay me for it in work;’ also, that tbe defendant was arrested the next day. Emanuel Over-street was then introduced by tbe State as a witness, and was asked by tbe defendant, if be was not the same Emanuel Overstreet who, on a change of venue to this county from Wilcox, was convicted of arson. Tbe court refused to permit said witness to answer this question, and the defendant excepted. Said witness, being then examined, testified, among other things, that be bad a conversation with tbe defendant on the day of the trial before a justice of the peace. The defendant objected to the witness being allowed to testify to any confession by defendant, because no predicate was laid; but tbe court overruled tbe objection, and tbe defendant excepted; and tbe witness then testified, tbat be and tbe defendant were alone on tbat occasion, and tbat tbe defendant then told bim be bought tbe pig from Sam Molan. Doctor Oobb was also examined as a witness for tbe prosecution, and tben tbe State rested. Thereupon, tbe defendant read a minute entry from tbe records of the Circuit Court of Dallas county, showing tbat Emanuel Overstreet was convicted of arson in tbe third degree; and Mr. Satter-field testified, that tbe Emanuel Overstreet named in said minute entry was tbe same Emanuel Overstreet who was examined as a witness in this case. Thereupon, tbe defendant moved tbe court to exclude from tbe jury tbe testimony of said Emanuel Overstreet, on tbe ground tbat be was rendered incompetent as a witness by such conviction; which motion tbe court overruled, and tbe defendant excepted.” No counsel appeared in this court for tbe defendant, so far as tbe docket and tbe record show. Jno. W. A. Sanford, Attorney-General, for tbe State. [MAJORITY — MANNING, J. —] MANNING, J. — Tbe objection tbat tbe name of tbe court in wbieb an indictment is found is not set forth at length in tbe indictment, or in tbe beading thereof, is not well taken. Tbe previous part of tbe record, showing tbe organization of tbe court, and tbe impannelling of tbe grand jury, whose foreman indorses “a true bill,” and bis name as foreman, on tbe indictment, “is applicable to, or is a part of every indictment, and need not be inserted therein.” — Perkins v. The State, 50 Ala. 154, and cases there cited. No grounds are shown for objection to tbe admission of defendant’s statements tbat were received in evidence. They were not confessions, but rather contradictory declarations, made to different persons, with apparently tbe view of thereby exculpating, instead of criminating himself. Tbe general rule of tbe common law, in respect to what will disqualify a person to testify as a witness, on account of infamy, is, tbat such will be tbe effect of a conviction and judgment for treason, felony, or any offense belonging to the class generally described as “crimenfalsi.” "What these are, it is not easy in all cases to determine. Tbe common-law offense of arson, tbe malicious and unlawful burning of tbe bouse or outhouse of another, was a felony, and would work a disqualification to testify, in a person convicted and sentenced for committing it. But, in tbe present case, tbe only evidence was, that tbe person admitted as a witness bad been convicted of our statutory offense of “arson in tbe third decree.” How be bad committed that crime, was not shown. And according to tbe statute there are acts of burning, such as tbe burning of a bridge, or a toll-gate, that would constitute arson in the third degree according to tbe statute, but not arson at tbe common law, or an offense that would come under tbe description, crimen falsi. It, therefore, was not shown that tbe witness was disqualified, if tbe common law on that subject is in force in this State. Let tbe judgment be affirmed.