McMickens v. State

SAMFORD, J. [1] In order to sustain a conviction for larceny, the state must establish : (1) The ownership of the property; (2) that the property was taken; (3) its value; (4) that it was taken with felonious intent; (5) that the 'defendant did the taking, or aided or abetted; and, (6) the time and venue. [2-4] There is no competent evidence in the record to show that the property charged in the indictment to have been stolen was in fact ever stolen at all. “Where nonconsent is a principal ingredient in the offense, direct proof alone from the person whose nonconsent is necessary can satisfy the rule. Other and inferior proof cannot be resorted to till it be impossible to procure this best evidence. Where the person who last had innocent possession of the property can be called as a witness, some sufficient reason, why it is not done ought to be shown.” 1 Mayfield, 579, § 242. There is no evidence in this case from which the jury would be warranted in saying, beyond a reasonable doubt, that the defendant ever took the property described in the in'dictment from the possession of the Woodward Iron Company, or, if he did so, it was felonious. The agent of the company having this property in charge might have been examined, or at least some one who knew that the property had been in the possession of the company, and had been taken without its consent. [5] The court, over the objection Of the defendant, admitted proof of sales of wire and brass made by the defendant to Bumby at various times during the year 1912. This was. error. Tinney v. State, 111 Ala. 74, 20 South. 597; Gibson v. State, 14 Ala. App. 111, 72 South. 210. . [G] The solicitor in his argument made use of the following remark: “My heavens, did you ever see a case that approached this? In two months’ time he stole 2,000 pounds of copper wire.” There was no evidence to justify this remark. Prosecuting attorneys should not let their zeal carry them outside the record.. The state only demands convictions on evidence. Newell v. State, ante, p. 77, 75 South. 625. ' The other rulings of the court were without error. For the errors above pointed out, the judgment is reversed, and the cause is remanded. Reversed and remanded.