Opinion
8 Div. 332.
June 14, 1932.
Appeal from Lawrence County Court; W. R. Jackson, Judge.
Miller Witt was convicted of petit larceny, and he appeals.
Reversed and remanded.
Wm. L. Chenault, of Russellville, for appellant.
In support of motion to establish bill of exceptions, counsel cites Irwin v. State, 24 Ala. App. 583, 139 So. 300.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
There was sufficient evidence to go to the jury as to the guilt of defendant, and it was not error to refuse the affirmative charge in his favor. 16 C. J. 773; Sims v. State, 99 Ala. 161, 13 So. 498; Talbert v. State, 121 Ala. 33, 25 So. 690; Fulton v. State, 8 Ala. App. 57, 62 So. 959; Bonds v. State, 130 Ala. 117, 30 So. 427; Crawley v. State, 15 Ala. App. 327, 73 So. 222; Gratton v. State, 4 Ala. App. 172, 59 So. 183.
Appellant was convicted of the offense of petit larceny. Code 1923, § 4908.
The cause is submitted here, in all respects as was the case of Irwin v. State, 24 Ala. App. 583, 139 So. 300, the decision in which was handed down on January 19, 1932.
We do not find it necessary, on the present appeal, to make any ruling upon appellant's motion to establish the bill of exceptions under Code 1923, § 6435; this for the reason that, even according to the bill of exceptions contained in the record as sent up here, appellant was entitled to have the jury given at his request the general affirmative charge to find in his favor.
He was charged by affidavit, upon which he was tried, with no other offense than petit larceny. Code, § 4908, supra.
There was not a scintilla of evidence that he was guilty as charged.
If it was desired to prosecute him for the offense denounced by Code 1923, § 4912, buying, receiving, concealing, etc., stolen property, the affidavit should have been so framed.
For the error in refusing to give at appellant's request the general affirmative charge, etc., the judgment is reversed, and the cause remanded.
Reversed and remanded.