Opinion
1 Div. 40.
January 19, 1932.
Appeal from Circuit Court, Baldwin County; F. W. Hare, Judge.
Ed Flott was convicted of grand larceny, and he appeals.
Affirmed.
B. F. McMillan, Jr., and H. H. McKee, both of Mobile, for appellant.
The indictment charges a felony in that defendant took and carried away seven sticks of timber of the value of $120. The charge comprehends and the evidence shows only a violation of sections 4914, 4915 of the Code, which is a misdemeanor. Timber was not the subject of larceny at common law. Holly v. State, 54 Ala. 238; McQueen v. State, 10 Ala. App. 244, 65 So. 310; State of Washington v. Klinkenberg, 76 Wn. 466, 136 P. 692, 49 L.R.A. (N.S.) 965, Ann. Cas. 1915D, 468. A felony and a misdemeanor cannot be joined in the same indictment. James v. State, 104 Ala. 20, 16 So. 94; Lewis v. State, 4 Ala. App. 141, 58 So. 802. Indictments must be certain and precise. Noah v. State, 15 Ala. App. 142, 72 So. 611. If there is a special statute governing certain acts, the defendant cannot be tried and convicted for those acts under a general statute. Doss v. State, 23 Ala. App. 168, 123 So. 237; State v. Donahue, 75 Or. 409, 144 P. 755, 147 P. 548, 5 A.L.R. 1121.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The indictment was substantially in Code form, and the demurrer thereto was properly overruled. Code 1923, §§ 4527, 4556 (64), 4905; Ragan v. State, 15 Ala. App. 694, 72 So. 506. It was proper to allow the state to show what the appellant said relative to his possession of the logs; this was admissible as tending to show how his possession came about, or an explanation of same. Bryant v. State, 116 Ala. 445, 23 So. 40. Where the evidence is sufficient to afford an inference of defendant's guilt, the affirmative charge is correctly refused. Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am. St. Rep. 60, 10 Ann. Cas. 1126; Shepperd v. State, 94 Ala. 102, 10 So. 663. The unexplained possession of recently stolen property is prima facie evidence of guilt, and is a fact from which guilt may be inferred. Thomas v. State, 15 Ala. App. 163, 72 So. 688; Bryant v. State, supra.
Appellant was convicted of the offense of grand larceny.
The indictment was in the form prescribed by the Code, and the demurrers thereto were properly overruled. Code 1923, § 4556, part 1 of form 64; Id. § 4527; Id. § 4905; Ragan v. State, 15 Ala. App. 694, 72 So. 506.
There was no error in allowing the state to introduce testimony of statements made by appellant relative to his possession of the logs in question. Such evidence was admissible as tending to show how his possession came about. Bryant v. State, 116 Ala. 445, 23 So. 40.
There was at least a scintilla of evidence pointing to the guilt of appellant as charged — if there was not more. So the general affirmative charge to find in his favor, which he requested, was properly refused. Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411.
The other written charges requested by appellant, and refused, have each been examined. In each instance the same was either argumentative, exacted too high a degree of proof, or not predicated upon a consideration of all the evidence. Each of them was properly refused.
We discover nowhere prejudicial error, and the judgment appealed from is affirmed.
Affirmed.