Where the State relies on the rule of recent possession of stolen goods to obtain a conviction, it is incumbent upon the State to prove that the goods in defendant's possession were the identical goods alleged to have been stolen. Dawson v. State, 43 Ala. App. 254, 188 So.2d 283; Daw v. State, 42 Ala. App. 642, 176 So.2d 49; Nelson v. State, 29 Ala. App. 121, 192 So. 594. Instructing a jury, in a prosecution for receiving and concealing stolen property, that the possession of recently stolen property places upon a defendant the burden of explaining his possession, is reversible error. Graham v. State, 216 So.2d 298; Haynes v. State, Ala.App., 222 So.2d 183; Coats v. State, 257 Ala. 406, 60 So.2d 261; Orr v. State, 107 Ala. 35, 18 So. 142. Having properly reserved an exception to the court's oral charge asserted as error, a restatement by the trial court of the same erroneous proposition of law does not require the defendant to re-except to preserve error.
LIVINGSTON, Chief Justice. Petition of the State, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision in Dawson v. State, 188 So.2d 283. Writ denied.
The contention is made that State's Exhibits 2, 3, 4, 5, and 6, consisting of a photograph of cigarettes, a photograph of gun shells, nine cartons of cigarettes, eight cartons of cigarettes, and thirteen boxes of gun shells, respectively, "were never properly identified as the goods alleged to have been stolen in the instant case, and that as a result he was prejudiced at his trial and his conviction should be reversed." In support of this contention, appellant relies upon Nelson v. State, 29 Ala. App. 121, 192 So.2d 594 (1939); Hendricks v. State, Ala. App., 41 So.2d 420 (1948); Daw v. State, 42 Ala. App. 642, 176 So.2d 49 (1965); and Dawson v. State, 43 Ala. App. 254, 188 So.2d 283 (1966). Although each of the cases cited is nearly in point, it is definitely distinguishable from the instant case in that the appellant's guilt of the crime charged therein, whether burglary or larceny, turned on whether property found in his possession after the alleged crime was the identical property, or one of the identical items of property, that he was charged with having criminally taken in the course of having committed burglary or larceny.
Within its discretion, Scott v. State, 246 Ala. 545, 21 So.2d 703; Turner Lee Rodgers v. State, Ala.Cr.App., 332 So.2d 739, cert. denied Ala., 332 So.2d 746, the trial court ruled that the State could attempt to introduce a .22 caliber pistol allegedly used by the appellant during the robbery, but prohibited any attempt to introduce the money allegedly taken since it "could not be identified under the representations made to the court." See Dennison v. State, 259 Ala. 424, 66 So.2d 552; Lackey v. State, 54 Ala. App. 693, 312 So.2d 96; Dawson v. State, 43 Ala. App. 254, 188 So.2d 283, cert. denied 279 Ala. 686, 188 So.2d 285; 22A C.J.S. Criminal Law ยง 709. However, during the appellant's closing argument the following occurred (R. pp. 64-65):
Martin v. State, 44 Ala.App, 395, 210 So.2d 704. Where the State fails to connect defendant with burglary and failed to show that goods allegedly stolen were in the defendant's possession, it is reversible error for the Court to refuse defendant's motion to exclude the evidence. Dawson v. State, 43 Ala. App. 254, 188 So.2d 283; Bledsole v. State, 35 Ala. App. 567, 50 So.2d 457. MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
Daw v. State, 42 Ala. App. 642, 176 So.2d 49(3) involved a problem of identification of fungibles, together with the loophole of other persons also raising the crop. See also Dawson v. State, 43 Ala. App. 254, 188 So.2d 283 where shoes proffered by the Sheriff had been half-soled. In Mitchell v. State, 94 Ala. 68, p. 69, 10 So. 518, p. 519, the reporter stated:
"The defendant was entitled to the affirmative charge, requested by him in writing, * * *" See also Colley v. State, 41 Ala. App. 273, 128 So.2d 525 (robbery: insufficient evidence); Wildman v. State, 42 Ala. App. 357, 165 So.2d 396 (burglary: insufficient evidence); Dawson v. State, 43 Ala. App. 254, 188 So.2d 283 (burglary: insufficient evidence). The nearest to a spotted horse case like unto the one of instant concern is Sumeral v. State, 39 Ala. App. 638, 106 So.2d 270, where we find: