
    Benjamin v. The State.
    
      Larceny.
    
    (Decided January 12th, 1915.
    67 South. 792.)
    1. Evidence; Declarations; Presence of Defendant. — Evidence of a witness that some one had told him over the phone that the defendant, who was one of his porters, was down there with goods which the speaker was sure had been stolen, and was trying to dispose of them, was not admissible because not made in the presence of the defendant.
    2. Same; Secondary; Identity. — Where a part of the goods stolen was a lady’s dress on which there was a ticket bearing a certain price mark, which had been removed when found, it v'as competent to show that after defendant had been arrested, there dropped from the clothes of the defendant a ticket similar to that which had been on the dress; bearing the same price mark, and that the ticket found on the defendant looked like the one missing from the dress; such ticket being a matter of description and identity, and not a document and hence susceptible of proof by parol.
    
      3. Appeal and Error; Harmless Error; Evidence. — Where error has been committed by the admission of evidence, such error is cured by a proper subsequent withdrawal of such evidence.
    4. Charge of Court; Directing Verdict. — Where the evidence in a criminal case, if believed by the jury, is sufficient in its inferences to overcome prima facie the presumption of innocence, a defendant is not entitled to have a verdict directed for him.
    5. Same; Reasonable Doubt. — A charge asserting that the jury could not convict without a reasonable belief of defendant’s guilt, and that such belief might not be sufficiently strong to exclude a reasonable doubt to the contrary, was properly refused.
    Appeal from Montgomery City Court.
    Heard before Hon. Armstead Brown.
    Clem Benjamin was convicted of grand larceny, and be appeals.
    Affirmed.
    The facts sufficiently appear. The following is charge 9:
    The jury should not convict defendant without a reasonable belief of his guilt, and even such reasonable belief might not be sufficiently strong to exclude a reasonable doubt to the contrary.
    L. A. Sanderson, for appellant.
    It is admitted that the court was in error in permitting testimony of declarations of a third party not made in the presence of the defendant,' but it is insisted that the error wras cured by the court’s action in subsequently excluding such evidence. This insistence cannot be sustained. — Maxwell v. The State, 89 Ala. 164; Williams v. The State, 83 Ala. 16; Perry v. The State, 91 Ala. 83. The court erred 'in admitting evidence as to the similarity of the tag without requiring a production of same. — Dubose v. The State, 115 Ala 76; Jernigan v. The State, 81 Ala. 58.
    Robert C. Brickell, Attorney General and Thos. H. Seay, Assistant Attorney General, for the State.
    Counsel discuss the matters assigned with the insistence that no errors intervened, but they cite no authority.
   THOMAS, J.

Defendant was convicted of grand larceny, and on appeal bis counsel urge that tbe lower court committed error in tbe admission of evidence, in two particulars, and in refusing written charges 9 and 12.

Clearly, tbe court was, as is first insisted, in error in permitting tbe state’s witness Sims to testify that some one told bim (witness) over tbe pbone that: “There is I am sure be has stolen them and is trying to dispose of talking was a police officer, and that the defendant bad them. If I turn tbe negro up, will you pay us for it?”

Tbe court was probably led into tbe error of admitting this evidence upon tbe assumption that tbe person talking was a police officer, and that tbe defendant bad been arrested and was within tbe presence and hearing of tbe officer at tbe time tbe latter was so talking over tbe pbone and therein charging defendant with crime. There was some basis for such an inference at tbe time tbe message was let in, evidently misleading also' tbe defendant’s counsel, which we judge from tbe fact that one of tbe objections interposed to it by bim was “that it was a declaration made by a third party in tbe presence of defendant.”

Later, it developed that defendant was not present; and thereupon tbe court on motion of defendant’s counsel excluded and ruled out from tbe consideration of tbe jury this telephone message, and thereby cured tbe error of admitting it.

It appears that tbe defendant was a porter in tbe store from which tbe goods. were stolen, and that, among tbe articles taken, was a lady’s dress, which was found, on the day tbe defendant was arrested, concealed behind tbe store, and that, when found, tbe ticket bearing tbe price mark ($35), which bad formerly been on tbe dress, bad been removed from it; and one of the state’s witnesses was permitted to testify, over defendant’s objection, tbat after defendant was arrested, and while be was being carried to jail, there dropped from his clothes a ticket like that that had been on the dress bearing the price mark $35.

The insistence here of defendant’s counsel, which is predicated upon his objection in the lower court raising that point, is that the ticket itself was the best evidence of its contents, and that secondary evidence of such contents was not admissible until loss of the ticket had been shown. This is undoubtedly the rule with respect to documents; but counsel overlook the fact that there are certain writings and inscriptions which cannot be properly classed as documents, and to which the rule is not applicable, but which the law regards simply as matters of description and identity and as susceptible, primarily, of parol proof. Among writings that have been held to be of this class are a direction on a parcel, words written on the tag of a valise, labels attached to jugs or decanters, and indicating their contents, etc.; and we a.re clear'in the opinion, and so hold, that the ticket here in question properly falls within such class, and consequently that the court did not err in admitting parol evidence to the effect that the ticket found on the prisoner looked like the one that was missing from the dress and that each bore the price mark $35.-17 Cyc. 483, and cases there cited; Hester v. State, 103 Ala. 83, 15 South. 857; 1 Mayf. Dig. 322, § 8, and page 336, § 27; Mitchell v. State, 94 Ala. 68, 10 South. 518; Spivey v. State, 26 Ala. 90; Watson v. State, 63 Ala. 19; Duffie v. Phillips, 31 Ala. 571; Johnson v. Cunningham, 1 Ala. 249.

As there was evidence, which, if believed by the jury, was sufficient in its inferences to overcome prima facie the presumption of innocence, the court- did not err in refusing charge 12, which was the general affirmative charge requested by defendant.—Jones v. State, 90 Ala. 628, 8 South. 383, 24 Am. St. Rep. 850. Nor did the court commit error in refusing written charge 9.—Gus Moore v. State, infra, 67 South. 789.

We have discussed only the errors urged, but have examined the entire record. As we find no error, the judgment appealed from is affirmed.

Affirmed.  