Opinion
8 Div. 907.
June 17, 1930.
Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.
Bud Myrick was convicted of burglary and grand larceny, and he appeals.
Reversed and remanded.
C. E. Carmichael, of Tuscumbia, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
No briefs reached the Reporter.
This appellant, and another, were jointly indicted for the offense of burglary and grand larceny. They were also jointly tried upon said indictment, and both of them were convicted by the verdict of the jury. From the judgment of conviction pronounced and entered, this appellant, alone, appealed to this court.
The indictment named in each count one Robert H. Houston as the injured party, but upon the trial of this case there was no evidence to sustain the charge of burglarizing by the two named defendants, of the smokehouse of Houston, and from the evidence adduced no conviction could be had on that charge. There was some evidence tending to connect this appellant with burglary from the smokehouse of one Houston Elledge who was the first witness examined by the state. In this case this appellant was not called upon to answer such charge, as nowhere in the indictment is Houston Elledge named as the injured party. All the evidence, therefore, as to the purported burglary of the Elledge smokehouse, and the larceny of meat from Houston Elledge, was irrelevant, immaterial, and inadmissible. This appellant requested the general affirmative charge, which charge, under the evidence, should have been given, and the error of the court in refusing said charge results in the necessity of reversing the judgment of conviction from which this appeal was taken.
Reversed and remanded.