
    West v. The State.
    
      Larceny.
    
    (Decided July 6, 1910.
    53 So. 277.)
    1. Constitutional Law; Statutes; Corporate Existence. — Section 6876, 1907, requiring defendant to. put in issue corporate existence by sworn plea where property is alleged to be stolen from a corporation, is constitutional.
    2. Larceny; Corporate Existence; Prima Facie Case. — -Where the ownership of stolen property is alleged toi he in a railroad corporation and the defendant interposed a sworn plea denying corporate existence, the Acts of 1890-91, p. 154, recognizing the corporate existence of such railroad company was admissible in evidence and sufficient prima facie to. establish the corporate entity and to discharge the burden of proof cast on the state by the sworn plea.
    3. Same: Character of Goods; Proof. — -Where the indictment charged the theft of eleven cow-hides of a stated value, a conviction could not be sustained in the absence of proof that the hides were cow-hides.
    4. Conspiracy; Evidence; Declarations of Conspirators. — Where a conspiracy is established any act or declaration of a conspirator made or done in furtherance of a common design is admissible against a co-conspirator though not made or done in his presence.
    Appeal from Marshall Circuit Court.
    Heard before Hou. TV. TV. Haralson.
    Will West was charged and convicted of grand larcenY in that he stole eleven cow-hides of a stated value, the property of the N. C. & St. L. Railway, and he appeals.
    Reversed and remanded.
    John A. Lusk, for appellant.
    Section 6876, Code 3907, is violative of section 6 of the Constitution 1901. The court should have granted a change of venue.— Seams’ Case, 84 Ala. 410. The acts of Paul West were not admissible. — Me Anally’s Case, 74 Ala. 9. His admissions would not be admissible against him. — State v. Sims, 31 So. 71. They were made or done after the commission of the crime and not in the presence of the defendant. — Goree v. The State, 58 Ala. 391; 45 Cal. 19; 71 Cal. 569. See also, 42 Ind. 346; 36 Pac. 815; Jamies v. The State, 115 Ala. 83. Defendant was entitled to the affirmative charge as there was no proof that the hides stolen were cow-hides. — McGhee v. The State, 52 Ala. 224; Morris v. The State, 97 Ala. 83; 25 Cyc. 201; 22 Cyc. 461.
    Alexander M. Garber, Attorney General, for the State.
    Section 6876 of the Code of 1907 is constitutional. — Daily v. The State, 48 So. 498. The evidence did not establish a right to- change of venue. — Hussey v. The State, 87 Ala. 121. The act of the legislature recognizing the N. C. & St. L. Ry., was admissible. — Corbett v. The State, 3 Eire, of Evi. 94. Declaration of a conspirator in furtherance of a common design are admissible against the co-conspirator, even if made in his absence when the conspiracy has been established. — - Gibson v. The State, 89 Ala 121; Evans v. The State, 109 Ala. 11; Hunter v. The State, 112 Ala. 77. The allegation that the hides were cow-hides was a mere surplusage, and did not have to be proven. — 25 Cyc. 101; 13 Enc. of Evi. 711.
   DOWDELL, C. J.

The appeal in this case is prosecuted from a judgment of conviction for grand larceny.

A demurrer was interposed to the indictment, which the coiirt properly overruled. Indeed, counsel for appellant concedes in brief that there is no merit in the demurrer. The defendant applied for a change of venue upon the alleged ground that he could not obtain a fair and impartial jury in the county of Marshall for his trial. On this' application evidence was offered both by the defendant and the state on affidavits and testimony of witnesses examined ore tenus. The case calls for no discussion of the law or citation of authorities on the question as presented, since the evidence falls far short of showing that the defendant could not obtain an impartial jury and a fair trial in the county of Marshall.

The contention that the statute (section 6876 of the Code of 1907), which requires a sworn plea by the defendant to put in issue corporate existence when corporate ownership of property stolen is alleged, is unconstitutional, is without merit. That such legislation is within legislative compentency and not offensive to the Constitution is settled in principle in the case of Alonzo Bailey v. State, 161 Ala. 75, 49 South. 886. See, also, Fong Yue Ting’s Case, 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905. The special act of December 10, 1890 (Acts 1890-91, p. 154), offered in evidence, was a legislative recognition of the corporate existence of the Nashville, Chattanooga & St. Louis Bail way and in a criminal prosecution where the ownership of the property stolen is alleged to be in said corporation i.s admissible in evidence under the sworn plea of the defendant denying corporate existence, and sufficient to make a prima facie case of the alleged corporate entity, and to discharge the burden of proof cast by the sworn plea. — Boykin v. State, 96 Ala. 16, 11 South. 66; 10 Cyc. pp. 241-2.

There were a number of objections taken to the introduction of evidence, and exceptions reserved but it is unnecessary to treat them in detail, since a general sta.tment of the law relative to the questions raised will prove a sufficient guide upon another trial, as the case must be reversed for an error that will be pointed out later. The principle of law to be stated is that, where a conspiracy is established, any act or declaration of a conspirator made or done in furtherance of the common design is admissible in evidence against a co-conspirator, although not made or done in the presence of such co-conspirator. The indictment alleged the theft of eleven cow hides, of a stated value. There was a total absence of evidence that the hides stolen Avere coav hides. Non constat, they were horse hides, or hides of some other animal than that of the coav kind. A defendant could not be convicted under a charge of larceny of coav hides by proving that he stole horse hides. The description of the hides in the indictment was material, and proof was necessary to a conviction. This failure of the evidence entitled the defendant to the general charge as requested, and its refusal was error for which the judgment must be reversed.

Reversed and remanded.

Anderson, Sayre, and Evans, -JJ., concur.  