Whizenant v. State

71 Ala. 383

Opinion

STONE, J.

In Chappell v. State, ante p. 322, we construed the act under which defendants in criminal cases are allowed “ to make a statement as to the facts in their own behalf, but not under oath.” Under the ruling there made, this cause must be reversed.

And in Burke v. State, ante p. 377, we ruled that a defendant, in making his statement, should not be allowed to state his own motive, belief, or intention, unless that motive, belief or intention was made known at the time the act was done, the facts of which he is permitted to state. It is for the jury to infer the motive, belief, or intention, from the facts and circumstances in the case, such as witnesses could testify to; and inasmuch as witnesses can not know, and therefore can not testify to the uncommunieated belief, motive or intention of the defendant, neither can the defendant make it a part of his statement.

Wright, the witness, testified to a description of the steers, which were alleged to have-been stolen. Miles testified to a description of two steers he said he had purchased from the-defendant. This was certainly proper testimony to be weighed by the jury, in connection with the other evidence in the cause, in determining whether the steers alleged to have been lost, were the same steers which were, according to the testimony of Miles, sold to him by the defendant. It was not, however, permissible to prove any previous unsworn description the witness Wright may have given, nor the belief or conclusion of the witness Shafer, that that description corresponded with his own recollection of the steers he saw sold to Miles. It could not legitimately be made the basis of a comparison by the witness, nor could his conclusion or opinion, based thereon, be given to the jury as evidence. Nor was it admissible, in corroboration of- the witness Wright. The whole subject was one of identity, and that was for the jury to determine.-See 1 Greenl.Ev. § 469; Nichols v. Stewart, 20 Ala. 358; Childs v. State, 55 Ala. 25.

Larceny does not change the ownership or lawful possession of property. Consequently, if the thief carry the stolen goods into another county, or have them so carried, and there exercise dominion over them, this constitutes a theft in the latter county; and the indictment, prosecution and conviction inay be had in that county.-Smith v. State, 55 Ala. 59; Lucas v. State, 62 Ala. 26.

On the two questions above noted, the judgment of the Circuit Court is reversed, and the cause remanded. Let the accused remain in custody until discharged by due course of law.