Opinion
37161.
DECIDED JUNE 23, 1958.
Larceny from the house. Heard Superior Court. Before Judge Boykin. December 13, 1958.
James E. Weldon, for plaintiffs in error.
Wright Lipford, Solicitor-General, contra.
The court erred in denying the motion for new trial on the general grounds.
DECIDED JUNE 23, 1958.
Buman K. Brown and his brother Culer Brown were separately indicted for larceny from the house "in that they did on the 15th day of October, 1956, unlawfully enter the storage house of W. P. Wingo and did privately steal therefrom 1100 pounds of seed cotton of the value of $175." Although indicted separately, they were tried together and were convicted by a jury with the recommendation from the jury to serve a minimum of three years and a maximum of five years. The court so sentenced them. They filed separate motions for new trial on the general grounds only. The court denied the motions, and each of them filed separate bills of exceptions to this court.
The brief of evidence is somewhat difficult to relate, but we deem it necessary to set out the material parts in detail.
W. P. Wingo, the owner of the cotton, testified substantially that he was a farmer and merchant and lived on Franklin Road; that he was on his farm on October 15, 1956; that he has a storage place on his farm which is known as the "old home place" and that he had stored on the place on October 15, 1956, 1100 pounds of seed cotton of the value of $175; that he missed the cotton early in the morning of October 16, 1956; that he reported the loss to the sheriff.
Emory Wingo, the son of W. P. Wingo, testified that he lived with his father on October 15, 1956; that he knew both of the defendants; that he saw the defendants on October 15th, about 5 o'clock in the afternoon at his father's homeplace; that the defendants were on the back porch and said they wanted some water while they were looking in the house; that "I asked them what they were doing and they said they wanted some water. They were driving a green 1947 Ford coupe." The witness testified that he went back to the field after the defendants got the water. On cross-examination the same witness testified: "I said there were three people at my father's storehouse. It was some kind of looking car, not a convertible. I left them in the storehouse. That's all I know."
Henry McFarland testified: "I live near Abbottsford in Troup County. I have seen the defendants. They came to my house on October 16th. I don't know when they came the first time. I think it was about night. I had been sleeping. There were three men. There are two of them right there [indicating]. They asked me for a small drink and I got out of the bed and knocked them up one. . . They did not stay there long. They left some seed cotton right at the back door. Well, that man brought it there. I did not see the cotton in the car. That is them sitting in there who unloaded the Brown boys' car right from the back yard. They were sitting there talking. Three of them were sitting right there together, as well as I myself. Those two men sitting to the left of Mr. Weldon, they told me that I was going to get some more seed cotton. They brought some more between then and daylight. I did not help them unload that. They just said they would be back. The cotton stayed there the balance of the morning and then next day it disappeared. I don't know it was moved. After I found it was misplaced I wasn't interested in the cotton. Then there were the boys, the fellows over there, who came to get the cotton. It was one or the other who came back to get the cotton. I was over there in the morning. That fellow came over the next morning." On cross-examination the same witness testified: "I have been in jail for shine. I drink it. I used to sell it. I can't sell any of that stuff now. No, sir, I do not have much sense. I can't read or write. I do remember talking to you the other day. Yes, sir, I said I was drunk on that night. Yes, sir, it was in the middle of the night. I know the people who brought it. I just had a drink. I had been drinking. I don't leave home when I get drunk. Yes, sir, I was drunk that night. I can't answer your question about whether I said I don't know who hauled any cotton. He had made two trips. I don't know how much cotton it was. No, sir, I did not steal the cotton. I want to say it's misplaced. I saw them last year when I came to town. I don't know their names. I never keep up with names. I call people `Boss Man'. I helped the man that night. I don't think that I stole any cotton. Why should I have stolen that cotton. No, sir, I did not steal the cotton. I have been here over 17 years. I live by the law excusing one thing that I violate and that is drinking. I would say two men got the cotton. One in the trunk. I guess it was two that moved it. I can't tell you who moved it. I don't know who moved it."
Virgil Bledsoe, Sheriff of Heard County, testified substantially that he knew both Culer Brown and Buman Brown and that he made an investigation with reference to some cotton that belonged to W. P. Wingo; that he went to the home where the cotton was missing and then went to McFarland's house and to Culer Brown's house; that Buman Brown was staying with Culer Brown; that he found a green 1947 Ford coupe about 75 yards or more down the street from Culer Brown's; that he did not examine the automobile that night; that he examined it later; that it was in the same place; that he found cotton in the back of the car or, at least from the appearance, it looked like "he had cotton back there. . . We got cotton out of the trunk back there. . . I was not able to locate Culer Brown. I located them May 28, 1957. . . I located them in Illinois and got back here May 27, 1957, and brought them back here." On cross-examination the same witness testified: "I do not know whose car or [to] whom the tag was issued. I don't know that it was their car. It was parked in front of their home when I found the car. The tag was in the name of Joe Smith. There isn't a Mrs. Joe Smith. She lived in LaGrange at that time. I don't know whether I know Joe Smith or not. I don't know that he was working in the mill."
The defendants each made a statement. Buman Brown made the following statement: "I was going to Huntsville, Alabama, the next day to see about a job, some construction work. Stopped by to see my sick sister who lives up in Victor School. We went by Mr. Wingo's and got me some water and went over to Mr. Rogers. Left there about sundown. Went on home and went on to Lee's Crossing and got down there about 8 o'clock. My brother and I got out. Got up the next morning to come back over and went over there, but couldn't get a job. Joe said he was coming back home. My brother and I came back home. That is all I know until Mr. Bledsoe came up there to my house." Upon being recalled Buman Brown made the following statement: "My car had been in front of the house. He left it there. Swapped cars with his brother, and his brother was supposed to come and get this one. That is why the car was sitting in front of my house. That is the reason why the car was there."
Culer Brown made the following statement: "Like he said, our sister lives up here in Victor School. We came up here to see her. She was sick. We were going on to Huntsville, Alabama. We stopped at this well. . . Stopped there lots of times. We stopped there and pulled in behind. We told him about it and he helped us draw the water and then we left. Went on to Mr. Rogers. We stayed an hour and a little while met him down at the pasture and talked to him a while. Met Joe at that time somewhere. I don't know exactly what time it was and Joe was going on. We got back to Lee's Crossing, and went on home. Then, the following day after this we left to Huntsville, Alabama, to see about a construction job. Lots of construction work has been going on. I had been there a week or so ago and the man told me to come back. Joe left there and said he was going to Chicago. As far as the colored fellows, I haven't seen them. Don't know either of them. That's about all I know."
The evidence shows that although the place where the cotton was stored had doors to it, there is no evidence that the doors were locked but the inference from the evidence is that they were not locked.
In our opinion the evidence is insufficient to convict the defendants, or either of them.
The court erred in denying the motions for new trial on the general grounds.
Judgment reversed. Townsend and Carlisle, JJ., concur.