Hammac v. State

Alabama Court of Appeals

Hammac v. State

212 So. 2d 849, 44 Ala. App. 459, 1968 Ala. App. LEXIS 489

CourtAlabama Court of Appeals

DecidedJune 28, 1968

Docket1 Div. 299

StatusPublished

Cited by9 cases

This text of 212 So. 2d 849 (Hammac 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.

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Hammac v. State, 212 So. 2d 849, 44 Ala. App. 459, 1968 Ala. App. LEXIS 489 (Ala. Ct. App. 1968).

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Opinion

PRICE, Presiding Judge.

These appellants were indicted separately but the cases were consolidated for trial and on appeal.

The indictments charged the larceny of “one Mercury outboard motor serial number 742497 of the value of $150.00, the personal property of William H. Roberts * * There was no proof of the serial number of the motor.

In a prosecution for larceny the proof must correspond with the description of the identical thing alleged in the indictment to have been taken. The court erred in denying the defendants’ motion to exclude the state’s evidence on the ground that the description of the property was not proved as charged in the indictments. Morris v. State, 97 Ala. 82, 12 So. 276; Smith v. State, 30 Ala.App. 158, 2 So.2d 341; Wright v. State, 52 Ga.App. 202, 182 S.E. 862; Wilson v. State, (1956) 93 Ga.App. 375, 91 S.E.2d 854.

The defendant William Roger Hammac, testifying as a witness, was asked by the State on cross examination if in 1960 he was sentenced to the state penitentiary for “grand larceny — receiving stolen property.” Defense counsel objected on the ground that witness had given his present age as 23 years and that in 1960 he would have been a juvenile. The objection was overruled. The witness answered yes. On redirect examination he stated that in 1960 he was sent to Boys’ Home in Mobile and spent a week there and was placed on probation.

If the witness’ sentence was from an adjudication as a delinquent child, a fact not made certain by the record here, it would not be proper evidence against him in the event of another trial. Section 377, Title 13, Code of Alabama; Love v. State, 36 Ala.App. 693, 63 So.2d 285.'

For the failure of the court to grant the defendants’ motion to exclude the evidence the judgment is reversed and the cause remanded.

Reversed and remanded.

JOHNSON, J,, not sitting.

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PRICE, Presiding Judge.

These appellants were indicted separately but the cases were consolidated for trial and on appeal.

The indictments charged the larceny of “one Mercury outboard motor serial number 742497 of the value of $150.00, the personal property of William H. Roberts * * There was no proof of the serial number of the motor.

In a prosecution for larceny the proof must correspond with the description of the identical thing alleged in the indictment to have been taken. The court erred in denying the defendants’ motion to exclude the state’s evidence on the ground that the description of the property was not proved as charged in the indictments. Morris v. State, 97 Ala. 82, 12 So. 276; Smith v. State, 30 Ala.App. 158, 2 So.2d 341; Wright v. State, 52 Ga.App. 202, 182 S.E. 862; Wilson v. State, (1956) 93 Ga.App. 375, 91 S.E.2d 854.

The defendant William Roger Hammac, testifying as a witness, was asked by the State on cross examination if in 1960 he was sentenced to the state penitentiary for “grand larceny — receiving stolen property.” Defense counsel objected on the ground that witness had given his present age as 23 years and that in 1960 he would have been a juvenile. The objection was overruled. The witness answered yes. On redirect examination he stated that in 1960 he was sent to Boys’ Home in Mobile and spent a week there and was placed on probation.

If the witness’ sentence was from an adjudication as a delinquent child, a fact not made certain by the record here, it would not be proper evidence against him in the event of another trial. Section 377, Title 13, Code of Alabama; Love v. State, 36 Ala.App. 693, 63 So.2d 285.'

For the failure of the court to grant the defendants’ motion to exclude the evidence the judgment is reversed and the cause remanded.

Reversed and remanded.

JOHNSON, J,, not sitting.

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212 So. 2d 849, 44 Ala. App. 459, 1968 Ala. App. LEXIS 489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammac-v-state-alactapp-1968.

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