Barney v. State

Alabama Court of Appeals

Barney v. State

57 So. 598, 5 Ala. App. 302, 1912 Ala. App. LEXIS 180

CourtAlabama Court of Appeals

DecidedJanuary 18, 1912

StatusPublished

Cited by10 cases

This text of 57 So. 598 (Barney v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barney v. State, 57 So. 598, 5 Ala. App. 302, 1912 Ala. App. LEXIS 180 (Ala. Ct. App. 1912).

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Opinion

de GRAFFENRIED, J. —

The prosecution in ' this case was commenced more than 60 days after the commission of the alleged offense. The affidavit was made before a justice of the peace, and as section 7348 of the Code provides that prosecutions before a justice of the peace for offenses within his jurisdiction, unless otherwise provided, must be commenced within 60 days after the commission of the offense, the justice made the warrant returnable to the county court of Clay county. In making the warrant returnable to the county court of Clay county, the justice of the peace complied with the law. — Acts 1898-99, p. 186; Smith v. State, 165 Ala. 122, 51. South. 602.

[305]*305The facts in the present case are, in so far as they relate to the question as to whether the -defendant could legally be convicted of larceny, practically similar to the facts in the case of Holbrook v. State, 107 Ala. 154, 18 South. 109, 54 Am. St. Rep. 65, in which the Supreme Court held that the question of the defendant’s guilt of larceny vel non was properly submitted to the jury. “It is a clear rule of law that, where a party has only the hare charge and custody of the goods of another, the legal possession -remains in the owner; and the party in custody may be guilty of trespass and larceny in fraudulently converting the same to his own use.” — Oxford v. State, 33 Ala. 416; Roscoe, Crim. Ev. 646; Daniel Jackson v. State, infra, 57 South. 110.

The remarks of the solicitor, to which exceptions Avere taken, were strictly in reply to remarks Avhich Avere made by counsel'for the accused in his argument to the jury. The court cannot, therefore, be put in error for permitting him to- make the remarks which Avere objected to by the defendant. — Childress v. State, 86 Ala. 77, 5 South. 775.

The court takes judicial knoAvledge of the fact that Lineville and Ashland are both in Clay county. The coat was delivered to the defendant in Lineville, to be carried to Ashland, and there was evidence tending to show that the defendant had the coat in his possession in Ashland. There was, therefore, some evidence in the case tending to show that the offense was committed in Clay county. “There was some evidence showing that the offense was committed in Jefferson county. No instruction was given or requested in respect to its sufficiency. Without a decision by the circuit court, made the subject of an exception, and involving an inquiry into the sufficiency of the evidence, this court cannot [306]*306interfere.” — Clarke v. State, 78 Ala. 474, 56 Am. St. Rep. 45; Ragsdale v. State, 134 Ala. 24, 32 South. 674.

4. A court cannot be put in error for refusing to give a charge requested simply as an argument or reply to some statement made by counsel in a case. Charge numbered 6 was requested as a reply to an argument of the solicitor in the case, and is, in fact, simply an argument, and the court cannot be put in error for refusing it.

There is no error in the record. The judgment of the court beloAV is affirmed.

Affirmed.

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de GRAFFENRIED, J. —

The prosecution in ' this case was commenced more than 60 days after the commission of the alleged offense. The affidavit was made before a justice of the peace, and as section 7348 of the Code provides that prosecutions before a justice of the peace for offenses within his jurisdiction, unless otherwise provided, must be commenced within 60 days after the commission of the offense, the justice made the warrant returnable to the county court of Clay county. In making the warrant returnable to the county court of Clay county, the justice of the peace complied with the law. — Acts 1898-99, p. 186; Smith v. State, 165 Ala. 122, 51. South. 602.

[305]*305The facts in the present case are, in so far as they relate to the question as to whether the -defendant could legally be convicted of larceny, practically similar to the facts in the case of Holbrook v. State, 107 Ala. 154, 18 South. 109, 54 Am. St. Rep. 65, in which the Supreme Court held that the question of the defendant’s guilt of larceny vel non was properly submitted to the jury. “It is a clear rule of law that, where a party has only the hare charge and custody of the goods of another, the legal possession -remains in the owner; and the party in custody may be guilty of trespass and larceny in fraudulently converting the same to his own use.” — Oxford v. State, 33 Ala. 416; Roscoe, Crim. Ev. 646; Daniel Jackson v. State, infra, 57 South. 110.

The remarks of the solicitor, to which exceptions Avere taken, were strictly in reply to remarks Avhich Avere made by counsel'for the accused in his argument to the jury. The court cannot, therefore, be put in error for permitting him to- make the remarks which Avere objected to by the defendant. — Childress v. State, 86 Ala. 77, 5 South. 775.

The court takes judicial knoAvledge of the fact that Lineville and Ashland are both in Clay county. The coat was delivered to the defendant in Lineville, to be carried to Ashland, and there was evidence tending to show that the defendant had the coat in his possession in Ashland. There was, therefore, some evidence in the case tending to show that the offense was committed in Clay county. “There was some evidence showing that the offense was committed in Jefferson county. No instruction was given or requested in respect to its sufficiency. Without a decision by the circuit court, made the subject of an exception, and involving an inquiry into the sufficiency of the evidence, this court cannot [306]*306interfere.” — Clarke v. State, 78 Ala. 474, 56 Am. St. Rep. 45; Ragsdale v. State, 134 Ala. 24, 32 South. 674.

4. A court cannot be put in error for refusing to give a charge requested simply as an argument or reply to some statement made by counsel in a case. Charge numbered 6 was requested as a reply to an argument of the solicitor in the case, and is, in fact, simply an argument, and the court cannot be put in error for refusing it.

There is no error in the record. The judgment of the court beloAV is affirmed.

Affirmed.

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57 So. 598, 5 Ala. App. 302, 1912 Ala. App. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barney-v-state-alactapp-1912.

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