Opinion
6 Div. 952.
January 11, 1927. Rehearing Denied March 8, 1927.
Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.
C. P. Campbell was convicted of buying, receiving, or concealing stolen property, and he appeals. Affirmed.
Certiorari denied by Supreme Court, 216 Ala. 295, 112 So. 902.
The bill of exceptions shows that, while the jury was being qualified, the state asked the court to inquire of all jurors present, from which a jury was to be selected to try the instant case, whether or not any juror was personally acquainted with the defendant or whether or not there were any of them who were personal friends of the defendant. The court put the question to the jurors, to which action defendant objected and reserved an exception.
Witness Giles, a police officer, was permitted, over defendant's objection, to testify as to the number of the car reported to him as having been stolen and also to testify that he had examined the motor of the car found in defendant's possession; that the number on the motor was not the original factory number, but had been stenciled on after the original had been obliterated.
This witness further testified that he approached defendant as he went to get into the car; that no threats, offers, promises, etc., were made to the defendant; that witness asked defendant whose car it was, and received the reply that it was defendant's; that witness asked defendant where he had gotten it, and defendant answered from the Attalla Motor Company; that witness asked if defendant had a certificate of title, and defendant said that he did have, but it was at his office. Witness had some further conversation with defendant, and then stated to him that he would like to go to defendant's office and see the certificate of title. Defendant then stated that the certificate was in the possession of one Garigues, and later, as testified by Giles, stated that he had bought the car from a man who said he worked for the Attalla Motor Company, and that he did not get a certificate of title with it. This witness further testified that defendant declined to take the officers to the man from whom he claimed to have bought the car, whereupon witness arrested defendant.
On cross-examination of defendant's withess Garigues, the solicitor propounded this question:
"Do you know anything about the time J. J. Garigues" (uncle of the witness) "collected some insurance on an automobile alleged to have been stolen, and it was afterwards found in Mr. Campbell's possession — that same automobile?"
Defendant objected to the question. The solicitor restated the substance of the question to the court in explanation of his reason for asking it. Defendant moved for a mistrial on account of the question and statement, whereupon the court stated:
"I will overrule your motion, but I will tell the jury not to consider those questions that" the solicitor "has asked — not let it have any influence with you. I sustain the objection to that."
Prosch Prosch and J. S. McLendon, all of Birmingham, and O. D. Street Son, of Birmingham, for appellant.
On the trial of a criminal case it is highly prejudicial error to permit the state to ask a witness what he knows about the connection of defendant with another similar case having no connection with or relation to the charge for which defendant was on trial, and for such conduct a mistrial should be ordered. Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301; Cassemus v. State, 16 Ala. App. 61, 75 So. 267; Forman v. State, 190 Ala. 22, 67 So. 583; Bertalsen v. State, 20 Ala. App. 539, 103 So. 480. Question to an arresting officer, as to what the number of the automobile recovered had been reported to him as stolen, called for hearsay and illegal testimony. Brisendine v. State, 19 Ala. App. 356, 97 So. 254; Lancaster v. State, 21 Ala. App. 140, 106 So. 609.
Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen., for the State.
No exception to the ruling on the motion for new trial is included in the bill of exceptions, and said ruling is not presented for review. Ex parte Thomas, 207 Ala. 662, 93 So. 521. Objection to the qualifying question put to prospective jurors is without merit. Leith v. State, 206 Ala. 439, 90 So. 687. It was competent for the state to show by witness Giles that the motor number of the car had been changed, and also to show the conversation taking place between witness and defendant. Cochran v. State, 20 Ala. App. 109, 101 So. 73; Dawkins v. State, 20 Ala. App. 54, 100 So. 619. It was within the discretion of the court to order or refuse a mistrial. Windom v. State, 18 Ala. App. 430, 93 So. 79.
Appellant was convicted of the offense of buying, receiving, concealing, or aiding in concealing one Ford automobile, of the value of $600, the personal property of J. W. McLendon, knowing that it was stolen, and not having the intent to restore it to the owner. He was given a sentence to serve not less than five nor more than six years in the penitentiary.
A discussion of the evidence would not be helpful. It was ample to support the verdict of guilt.
No exception to the ruling of the court overruling appellant's motion for a new trial is shown by the bill of exceptions, and the same will not be considered. Ex parte Thomas, 207 Ala. 662, 93 So. 521. Anyway, it seems the court acted properly.
The written requested charge refused to appellant seems to have been fully covered, in substance, in so far as it was correct, by the court's oral charge, in connection with the charges given at appellant's request, and there was no error in refusing same. Without that, though, its refusal would not have been error, for, as framed, it did not state the law correctly.
It was discretionary in the court to allow the questions put to the jurors upon their qualifications, etc.
There was no error in allowing the witness Giles to give testimony as to statements against interest made to him by defendant. Proper predicate was laid. Dawkins v. State, 20 Ala. App. 54, 100 So. 619.
A great many exceptions were reserved to rulings of the trial court on the taking of testimony. We have examined each of them. In none of them do we think there was prejudicial error. The identity of the car found in the possession of appellant, as being the one which was stolen, was a question for the jury. There was ample evidence to support their finding. Whether every ruling with reference to the changing of the numbers on the car, vel non, was technically correct or not, we do not see that appellant was injured, or could have been by same. The question of his guilt, vel non, under the evidence, did not in any way hinge on the answers to these questions.
There was no error in overruling appellant's motion to declare a mistrial on account of certain questions propounded by the solicitor. The court instructed the jury not to consider them, and this was enough, under the circumstances.
The case appears to have been carefully tried, and fairly.
We find nowhere any prejudicial error, and the judgment is affirmed.
Affirmed.