Opinion
3 Div. 541.
August 31, 1926. Rehearing Denied December 7, 1926. Reversed on Mandate May 10, 1927.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
J. C. Hawes was convicted of grand larceny and embezzlement, and he appeals. Reversed and remanded per mandate from Supreme Court, 216 Ala. 151, 112 So. 761. Certiorari granted by Supreme Court.
The indictment is as follows:
"The grand jury of said county charge that, before the finding of this indictment, J. C. Hawes, whose Christian name is to the grand jury otherwise unknown, feloniously took and carried away one automobile of the value of $100, the personal property of P. L. Hudson.
"The grand jury of said county further charge that, before the finding of this indictment, J. C. Hawes, whose Christian name is to the grand jury otherwise unknown, being the clerk, agent, or servant of P. L. Hudson, did embezzle or fraudulently convert to his own use one automobile of the value of $100, which had come into his possession by virtue of his office or employment.
"The grand jury of said county further charge that, before the finding of this indictment J. C. Hawes, whose Christian name is to the grand jury unknown, feloniously took and carried away from the person of P. L. Hudson eight $10 bills and one $20 bill of the lawful paper currency of the United States of America of the value of $100, the personal property of P. L. Hudson, against the peace and dignity of the state of Alabama."
The defendant's demurrer is as follows:
"Comes the defendant and demurs to the second count of the indictment in said cause, and as grounds of demurrer assigns, separately and severally, the following:
"(1) Because said count alleges that the defendant did embezzle or fraudulently convert to his own use one automobile which had come into his possession by virtue of his office, without alleging any facts to show he was an officer of the said P. L. Hudson.
"(2) For that said count of said indictment alleges that the property described therein as having been embezzled came into the defendant's possession by virtue of his office, and did not describe a person or officer within the statute.
"(3) For that under the statute under which said count of said indictment is found does not provide against any embezzlement from any officer of any private person, and said indictment alleges an embezzlement from a private person.
"(4) For that there is no such offense as embezzlement or fraudulently converting to one's own use of property that came into his possession by virtue of his office from any private person.
"(5) For that there is no such offense known to the law."
Defendant, having testified that on the occasion in question he was drinking, that he had bought some whisky, and that he and the prosecuting witness Hudson drank together, was interrogated as to the details of the acquiring and drinking of the whisky. The witness, having replied to a question as to how much he drank, answered that he did not remember much about it; whereupon the solicitor asked: "You don't remember that — you made that story up? Defendant's objection to this question was overruled.
Defendant introduced witnesses who testified to his good character in the community. In his closing argument to the jury, the solicitor stated: "I expect the Governor of Indiana, who was convicted and put in the penitentiary, could have shown a good character." Defendant's objection to this remark was overruled.
Hill, Hill, Whiting, Thomas Rives, of Montgomery, for appellant.
Any declaration or explanation defendant made at the time to witness Rambo, tending to exonerate himself from guilt, he was entitled to show and to have considered by the jury, explanatory of his honest intentions in the transaction. Smith v. State, 103 Ala. 40, 16 So. 12; Bryant v. State, 116 Ala. 445, 23 So. 40; Crawford v. State, 44 Ala. 45; State v. Gillespie, 62 Kan. 469, 63 P. 742, 84 Am. St. Rep. 411. There was error in permitting witness Avant, over defendant's objection, to testify what Hudson told him when he came to the office. This testimony was hearsay, a declaration or statement made by prosecuting witness against defendant's interest and not in his presence. Howard v. State, 17 Ala. App. 464, 86 So. 172. There was no evidence to support the charge of larceny of money from the person of Hudson, and the affirmative charge as to this count should have been given. Walling v. Fields, 209 Ala. 389, 96 So. 471; Dorsey v. State, 134 Ala. 553, 33 So. 350: Brasher v. State, 21 Ala. App. 309, 107 So. 727. The cross-examination by the solicitor of the defendant was improper and prejudicial. Blevins v. State, 204 Ala. 478, 85 So. 817; Campbell v. State, 19 Ala. App. 349, 97 So. 784; Tannehill v. State, 159 Ala. 51, 48 So. 662. Objection to the argument of the solicitor should have been sustained. Merrell v. State, 21 Ala. App. 38, 104 So. 882.
Harwell G. Davis, Atty. Gen., and Robt. G. Tate, Asst. Atty. Gen., for the State.
A question calling for a self-serving declaration is objectionable. Williams v. State, 105 Ala. 96, 17 So. 86; 4 Michie's Ala. Dig. 182. A wide latitude is allowed on cross-examination, and same rests in the discretion of the trial court. Fondren v. State, 204 Ala. 451, 86 So. 71; Gregory v. State, 148 Ala. 566, 42 So. 829; Largin v. State, 20 Ala. App. 550, 104 So. 50. The argument of the solicitor was legitimate and free from error. Savage v. State, 20 Ala. App. 97, 100 So. 919.
There was a general verdict of guilty as charged in the indictment, and, from the judgment of conviction pronounced and entered, in accordance with such verdict, this appeal was taken.
The indictment contained three counts — the first count being for the larceny of an automobile; the second, for the embezzlement of the same automobile; and the third count charged larceny of $100 in money from the person of P. L. Hudson.
The demurrers to the indictment were properly overruled.
In each count of the indictment P. L. Hudson is named as the alleged injured party. The evidence, without conflict, disclosed that the said P. L. Hudson, a resident of Pine Level, Montgomery county, Ala., was sent to Montgomery by his father to purchase an automobile with money belonging to his (Hudson's) father; that he met the defendant and rode around the city in a secondhand Ford car, which he finally purchased from defendant for the $100 his father had sent, and Hudson testified he gave the money to defendant Hawes, and that defendant then told him he had to go to the courthouse to get the papers on the car, and left with the money and the car; that he failed to return, and was not seen by Hudson again until some time later when he was arrested. Hudson testified "he never got back his money or the car."
It is here insisted that the defendant was entitled to the general affirmative charge as to each count of the indictment, which charges were requested in writing, upon the theory that the undisputed evidence disclosed that the car or money in question was not the property of P. L. Hudson, but was the property of the father of P. L. Hudson, etc.
These several insistences cannot be sustained. The undisputed facts constituted P. L. Hudson the bailee, the money in question was in his possession, and the ownership was properly laid in him. Fowler v. State, 100 Ala. 96, 14 So. 860; Viberg v. State, 138 Ala. 100, 35 So. 53, 100 Am. St. Rep. 22; Ex parte Economu, 211 Ala. 237, 100 So. 85.
The state introduced as a witness one J. P. Avant, who testified that he took Hudson in a car with him to try to find defendant, and, after driving all around town and back up on Adams street they found the car in question on the 900 block of Adams street, and found defendant in the house, and that, upon confronting him with Hudson, the defendant denied all knowledge of him, and insisted he had never seen him before; and further: "We came on to the office, and he still denied it bitterly, that he had ever seen this man or had anything to do with him, or been about him before until right now." In this connection the defendant, testifying as a witness in his own behalf stated "that he didn't think he told Mr. Avant that he had never seen Hudson before; that when Avant came in he was drinking coffee trying to get sober." He also testified "that if Hudson had paid him any money he didn't know anything about it; that he didn't know whether he gave him the money or not; * * * that he didn't know whether he sold the car or not."
The court refused to allow defendant to show by witness Rambo "that on this particular day the witness Rambo saw the defendant about 12 o'clock noon in front of the Standard Auto Supply Company, and that defendant, Hawes, asked him if he had seen a man named Hudson; that he was looking for a man named Hudson whom he had a deal with about an automobile; that he had an engagement to meet Hudson there in front of the Standard Auto Supply Company, and that he had not been able to find him there and wanted to know of witness if witness had seen him, describing him to witness. It is insisted that in this ruling the court committed reversible error. A self-serving declaration by defendant is never admissible unless part of the res gestæ. The above-quoted alleged declaration of defendant was not part of the res gestæ; it was therefore not admissible in evidence, and the court properly so held.
When state witness J. P. Avant was introduced as a witness, without objection by defendant, he was asked by the solicitor to "tell the jury what he knew about the case"; whereupon witness proceeded to testify, and among other things, stated, "He gave his name as John Williams, and I taken Mr. Hudson and" — whereupon defendant objected to this statement and moved to exclude it and excepted to the court's ruling in denying the motion. It is insisted that this ruling was error. In order to put the court in error for allowing in evidence improper, illegal, and immaterial answer of a witness, timely objection must be interposed to the question calling for such illegal testimony, and an objection comes too late if not made until after the answer of the witness is given. Here no objection was interposed until after the witness had given the answer complained of. It was responsive to the blanket question propounded by solicitor "to tell the jury what he knew about the case." By failing to object to this manner of examination of the witness, and by not insisting that specific questions be propounded in order that timely objections could be made, the defendant deprived himself of the right to object to such answers of the witness as were responsive to the question propounded. The court will not be put in error where the defendant waived his right to a proper examination of the witnesses as here appears.
The exceptions reserved to the manner of the solicitor in the examination of the witnesses and in his argument to the jury are without merit. We discover no reversible error in this connection. In our opinion this case presented a question for the determination of the jury. The evidence tended to show that the defendant got the $100 from Hudson. With what intent he so received this money was a question for the jury. The evidence tends to conclusively show that Hudson never received the money back, nor did he get the automobile from defendant or any one else for the money he paid to defendant. If, as insisted by defendant, he was drunk upon the occasion in question and could not remember what had occurred between himself and the injured party Hudson, this also was a question for the jury as to the intent of the accused, as the evidence relating to his condition at that time was also in conflict.
We discover no reversible error in any of the rulings of the court upon the trial of this case. Let the judgment of conviction appealed from stand affirmed.
Affirmed.
Reversed and remanded on authority of Hawes v. State, 216 Ala. 151, 112 So. 761.