"The statute makes the stealing of a cow, regardless of the value of the cow, grand larceny . . ., and in such case it is not necessary to allege or prove value. . . . Therefore the allegation 'of the value of thirty-five dollars,' not being descriptive of the offense, was properly regarded as surplusage, and proof thereof was not necessary."
How later courts described this case
- "The statute makes the stealing of a cow, regardless of the value of the cow, grand larceny . . ., and in such case it is not necessary to allege or prove value. . . . Therefore the allegation 'of the value of thirty-five dollars,' not being descriptive of the offense, was properly regarded as surplusage, and proof thereof was not necessary."
- the allegation in the indictment asserting the value of stolen cow was not descriptive of the offense, was properly regarded as surplusage, and proof thereof was not necessary
Written by the judges who cited it.
The opinion
BROWN, J.
(1, 2) It is here urged that the court erroneously admitted the inculpatory statement imputed to the defendant by the witness Lee in response to the solicitor’s question, “After you lost the cow, did he say anything about getting the cow?”
“Inculpatory confessions, voluntarily made, are admissible as evidence tending to show guilt; and while such confessions are prima facie involuntary, and therefore inadmissible, it is the duty of the trial court, in all cases, before permitting such confessions to be shown, to ascertain that they are voluntary; and on appeal, unless the record affirmatively shows that this duty was not performed by the court, the presumption will be indulged that a proper predicate was laid for the admission of the evi *135 dence.” —Fortner v. State, 12 Ala. App. 180 , 67 South. 720 ; Whatley v. State, 144 Ala. 75 , 39 South. 1014 ; Price v. State, 117 Ala. 113 , 23 South. 691 ; Gilmore v. State, 126 Ala. 20 , 28 South. 595 .
The record does not affirmatively show error in the admission of this testimony.
(3) The evidence shows that about the time Lee’s cow disappeared the defendant butchered a cow which he claimed to have purchased from Dr. Hammond; that this cow was in condition for beef and weighed 80 to 90 pounds to the quarter. The defendant also offered evidence that Lee offered to sell his cow to the defendant for beef, and that defendant refused to purchase because the cow was not in condition for beef. The state’s theory is that the cow butchered by the defendant was Lee’s cow, and evidence tending to show that she was in condition for beef was in rebuttal of the defendant’s evidence, and was properly admit ted. —Lang v. State, 1 Ala. App. 128 , 55 South. 1024 .
(4) The question of the defendant’s guilt or innocence, under the evidence, was for the jury, and the court properly refused the affirmative charge. —Finney v. State, 10 Ala. App. 39 , 65 South. 93 ; Turner v. State, 97 Ala. 57 , 12 South. 54 ; Hargrove v. State, 147 Ala. 97 , 41 South. 972 , 119 Am. St. Rep. 60 , 10 Ann. Cas. 1126.
(5) The statute makes the stealing of a cow, regardless of the value of the cow, grand larceny (Code 1907, § 7324), and in such case it is not necessary to allege or prove value (Parker v. State, 111 Ala. 72 , 20 South. 641 ). Therefore the allegation “of the value of thirty-five dollars,” not being descriptive of the offense, was properly regarded as surplusage, and proof thereof was not necessary .—Newsom v. State, 107 Ala. 137 , 18 South. 206 ; McGehee v. State, 52 Ala. 229; State v. Steelman, 7 Port. 495 .
We find no error in the record, and the judgment is affirmed.
Affirmed.