Pond v. The State

Pond v. The State. Indictment for Burglary. 1. Sufficiency of indictment. — An indictment which charges that the defend» ant “broke into and entered the store-house of K. D., with the intent to steal, whe?'e there was, at the time of such breaking and entering into said storehouse, goods, merchandise, or other valuable things, was kept for use,” Sat., though expressed in careless and ungrammatical language, is sufficient on demurrer. 2. Proof of confession, or conversation, by witness who remembers part only. — When a witness, testifying to a conversation or confession, admits that he'can not recollect all that was said at the time, this is no reason for rejecting his testimony entirely. 3. Proof of venue after evidence has dosed. — It is discretionary with the court below to permit a witness to be recalled, for the purpose of proving the venue, after the evidence has closed, and during the argument to the jury. FftOM tbe Circuit Court of Elmore, on ebange of venue from Coosa. Tried before tbe Hon. James Q. Smith. Tbe indictment in tbis case was in these words: “ Tbe grand jury of said county charge, that before tbe finding of this indictment, that George Pond broke into and entered tbe store-house of Robert Davidson, with tbe intent to steal, where there was, at tbe time of such breaking and entering into said store-house, goods, merchandise, 'or other valuable things, was kept for use, sale, or deposit; against tbe peace,” etc. Tbe defendant demurred to tbe indictment, “on tbe ground that it fails to aver that there was goods, merchandise, or other valuable thing kept for use, sale, or deposit, in said store-house at tbe time of tbe breaking and entering.” Tbe court overruled tbe demurrer, and tbe defendant then pleaded not guilty. “ On tbe trial,” as tbe bill of exceptions states, “tbe State introduced Robert Davidson as a witness, who testified, that bis store-house bad been broken open, and some whiskey, ten or twelve dollars in nickels, some silver, and a pair of shoes, taken from said store-house. Tbe solicitor then asked said witness, if be bad beard tbe defendant say anything about the goods that were taken out of bis store; to which tbe witness answered, that tbe defendant said that some shoes that were in court, and which were found in defendant’s possession, were tbe shoes that were taken out of bis bouse. The witness was then asked, by tbe defendant’s attorney, if that was all tbe conversation; to which be replied, that be did not know- — -it was bis opinion it was not. The witness was then asked, if the defendant did not, in the same conversation, say that he received the shoes from another person, who had broken and entered the store; to which he answered, that he believed this was said, but he did not remember the exact words used by the defendant in addition to the evidence above set forth. The defendant thereupon asked the court to exclude from the jury so much of the testimony of said witness as related to the confession of the defendant, on the ground that the witness could not state the whole of the conversation; which motion the court overruled, and the defendant excepted. “After the evidence had been closed, hnd the case opened by the solicitor, and while the defendant’s attorney was addressing the jury, a question arose, as to whether the venue in the case was proved; the defendant’s counsel stating that it was not, and the solicitor insisting that it was proved by the witness Davidson. The solicitor then offered said Davidson to restate what he had before stated as to the venue; to which the defendant objected, because the case had been closed and submitted to the jury; but the court overruled the defendant’s objection, and allowed the witness to be asked, if he had not, on his examination in chief, stated where the offense was committed. The witness stated, that he did in reply to the question of the solicitor, and that he said it was at Bockford, in Coosa county; to which the defendant duly excepted.” S. J. Dabby, for the defendant. • Jiro. W. A. Sanpobd, Attorney-General, for the State. [MAJORITY — MANNING, J. —] MANNING, J. — The form of accusation for the offense with which defendant is charged in this case is plainly indicated in the Code; and, though the indictment contained in this record is negligent and ungrammatical, in language and construction, we cannot impute to it a different meaning from that conveyed in the form prescribed by law. It being-charged that the defendant had broken into and entered the store-house specified, the word “ where ” must be understood, in that connection, as equivalent to the statutory words “ in which.” There was not error in overruling the demurrer. The objection to the statement by witness Davidson of-Ms conversation with defendant was properly overruled. Because the witness testified that he could not undertake to repeat all that was said by the accused, is not a sufficient reason for refusing to receive what he could remember. A witness wbo should deny recollection of what he knew was said, would be as much guilty of perjury, as if he willfully misstated what he professed to have heard defendant say. The jury can generally determine, by the answers upon cross-examination, and other evidence in the cause, as well as by what a witness may say on examination in chief, how much value ought to be attributed to his testimony. — Bob v. The State, 32 Ala. 360. The circuit judge did not err in permitting a witness to be recalled, to prove what he had said about the venue of the offense charged. To prove the venue, he might allow a witness to come in after the examination had closed, though no such testimony had been given. The judge presides to see that justice be done to both parties; and in reference to such a particular as the venue, the mere place at which an offense is supposed to have been committed, he ought generally himself to see to it that it be proved when the evidence for the State is given in. We find no error in the record, and the judgment is affirmed.