Oakley v. State

Supreme Court of Alabama

Oakley v. State

40 Ala. 372

DecidedJanuary 15, 1867

StatusPublished

This text of 40 Ala. 372 (Oakley v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Oakley v. State, 40 Ala. 372 (Ala. 1867).

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Opinion

A. J. WAXjKEB, C. J.

The instrument of writing signed by Williamson Jones was the first step in the proof necessary to show a title as alleged in the indictment, and was, therefore, admissible in evidence. This instrument, containing the words, “ Beceived of John B. Hamilton, agent of Isaac Milnen,’‘ was one which was' susceptible of explanation by parol evidence, to solve the question whether it was a contract with Hamilton for himself, or as the agent of Isaac Milnen. — Lazarus v. Shearer, 2 Ala. 718; Dawson v. Cotton, 26 Ala. 591. The possession of the instrument by Isaac Milnen, as evidenced by its transmission in a letter from him to his agent, conduced to show that he was the real and true party in the contract, and that Hamilton was only his agent. The evidence of those facts, tending to show title as alleged, was properly received.

2. In the first charge given by the court there was no error. Williamson Jones was, by virtue of the contract of sale, the bailee of Milnen. — Story on Bailments, § 2. But the court committed no reversible error in failing so to charge. It was a charge that could not have aided the defendant, if it had been given. The consent of the bailee, to the larceny or asportation of the chattels bailed to him, can not take away from the transaction its character of larceny, unless it was given by the authority of the owner. — 2 Bishop on Criminal Law, 827; Hite v. State, 9 Yerger, 198; Rex v. Longstreeth, 1 Moody, 137. By the bailment of his property, the owner was not divested of his right, nor was the bailee invested with the privilege of consenting to the larceny of the property. Trespass, as [376]*376against the owner, may result from a wrongful taking with the consent of the bailee. — Spivey v. State, 26 Ala. 90; Hall v. Goodson, 32 Ala. 277.

The charge which asserts that the chattel was not stolen if the asportation was with the consent of the owner’s bailee, was incorrect, but too favorable to the defendant, and can not justify a reversal at his instance. In the giving and refusal of the other charges we find no error.

The judgment is affirmed.

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A. J. WAXjKEB, C. J.

The instrument of writing signed by Williamson Jones was the first step in the proof necessary to show a title as alleged in the indictment, and was, therefore, admissible in evidence. This instrument, containing the words, “ Beceived of John B. Hamilton, agent of Isaac Milnen,’‘ was one which was' susceptible of explanation by parol evidence, to solve the question whether it was a contract with Hamilton for himself, or as the agent of Isaac Milnen. — Lazarus v. Shearer, 2 Ala. 718; Dawson v. Cotton, 26 Ala. 591. The possession of the instrument by Isaac Milnen, as evidenced by its transmission in a letter from him to his agent, conduced to show that he was the real and true party in the contract, and that Hamilton was only his agent. The evidence of those facts, tending to show title as alleged, was properly received.

2. In the first charge given by the court there was no error. Williamson Jones was, by virtue of the contract of sale, the bailee of Milnen. — Story on Bailments, § 2. But the court committed no reversible error in failing so to charge. It was a charge that could not have aided the defendant, if it had been given. The consent of the bailee, to the larceny or asportation of the chattels bailed to him, can not take away from the transaction its character of larceny, unless it was given by the authority of the owner. — 2 Bishop on Criminal Law, 827; Hite v. State, 9 Yerger, 198; Rex v. Longstreeth, 1 Moody, 137. By the bailment of his property, the owner was not divested of his right, nor was the bailee invested with the privilege of consenting to the larceny of the property. Trespass, as [376]*376against the owner, may result from a wrongful taking with the consent of the bailee. — Spivey v. State, 26 Ala. 90; Hall v. Goodson, 32 Ala. 277.

The charge which asserts that the chattel was not stolen if the asportation was with the consent of the owner’s bailee, was incorrect, but too favorable to the defendant, and can not justify a reversal at his instance. In the giving and refusal of the other charges we find no error.

The judgment is affirmed.

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40 Ala. 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oakley-v-state-ala-1867.

Opinion

A. J. WAXjKEB, C. J.

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