Opinion
8 Div. 220.
February 10, 1931.
Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr., Judge.
Orlan, alias Orlin, Wylie was convicted of grand larceny, and he appeals.
Affirmed.
Viola V. McCarty, of Tuscumbia, for appellant.
The evidence offered by the state was insufficient to constitute appellant an accessory before the fact; if it showed any guilty connection by him with the larceny, it was as an accessory after the fact, or receiving stolen property. 16 C. J. 134, 137. The fact that he was riding in the car, or even driving it, at the time of the arrest, would not prove such a possession of the car as would support a conviction for larceny. 25 Cyc. 136. It was error for the jury to communicate with the judge by means of the sheriff and the clerk, over the telephone, in absence of defendant or his counsel. Johnson v. State, 100 Ala. 55, 14 So. 627; Cooper v. State, 79 Ala. 54; McNeil v. State, 47 Ala. 498; Hawkins v. State, 33 Ala. 433; Harwell v. State, 11 Ala. App. 188, 65 So. 702, 703; Morris v. State, 146 Ala. 66, 41 So. 274; Leith v. State, 206 Ala. 439, 90 So. 687, 691; 1 Bishop's Cr. Proc. 1000; Holladay v. State, 20 Ala. App. 76, 101 So. 86; Gidley v. State, 19 Ala. App. 113, 95 So. 330; Meadows v. State, 182 Ala. 51, 62 So. 737, 738, Ann. Cas. 1915D, 663; Wade v. State, 155 Miss. 648, 124 So. 803: Crowe v. State, 23 Ala. App. 271, 124 So. 121, 122.
Thos. E. Knight, Jr. Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
There was evidence to the effect that appellant was found in possession of the stolen automobile. His explanation of said possession was to be weighed by the jury. Bryant v. State, 116 Ala. 445, 23 So. 40; Preuit v. State, 21 Ala. App. 561, 110 So. 53. Defendant's intent in taking property is a question for the jury. Flowers v. State, 215 Ala. 660, 112 So. 222; Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am. St. Rep. 60, 10 Ann. Cas. 1126. There was no improper communication between the judge and the jury; no prejudice shown to appellant. The cases cited by appellant are inapt.
Appellant was convicted of the offense of grand larceny.
It was undisputed that an automobile belonging to one Striplin, and of the value of $650, was stolen by two boys other than appellant, and that shortly thereafter the car was recovered by officers, with appellant and said two boys riding therein.
There was evidence offered on behalf of the state from which it could be inferred that appellant "counseled" the taking of the said automobile by the two boys mentioned, and that immediately thereafter he assumed, with them, its possession, and remained in such possession until the time of his arrest, and the recovery of the car by the officers, some hours later, and scores of miles from the scene of the original taking. We are of the opinion, and hold, that this testimony fairly made a case against appellant fit to be solved only by the jury, in the first instance, and that it was sufficient to sustain said jury's verdict finding appellant guilty as charged. There was therefore error neither in refusing to give at appellant's request the general affirmative charge in his favor, nor in overruling his motion for a new trial. 16 C. J. 134; Griffith v. State, 90 Ala. 583, 8 So. 812; Code 1923, § 3196.
We have carefully examined what is shown by the bill of exceptions with reference to the alleged improper communication between the court and the jury considering appellant's case, after the said jury had retired to the jury room for its deliberations. No novel propositions of law are raised by anything observed. It appears merely that the court declined to communicate with the jury, at a late hour at night, whereupon, shortly after the request for communication was made by the jury, it returned a verdict finding appellant guilty. It is not conceived by us that there was anything improper in the action of the court, or that appellant's cause "could have been injured" thereby.
We find nowhere any prejudicial error, and the judgment of conviction is affirmed.
Affirmed.