Arden v. State

• Decision Date: 19 December 1912
• Citation: 60 So. 538,6 Ala.App. 64
• Parties: ARDEN v. STATE.
• Court: Alabama Court of Appeals

60 So. 538

6 Ala.App. 64

ARDEN v. STATE.

Court of Appeals of Alabama

December 19, 1912

Appeal from Circuit Court, Blount County; J. E. Blackwood, Judge.

Joshua Arden was convicted under an indictment charging burglary and grand larceny, and he appeals. Affirmed.

James Kay, of Oneonta, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin Asst. Atty. Gen., for the State.

PELHAM J.

The indictment contains two counts. One, the first, is for burglary; the other for grand larceny. The verdict was a general verdict finding the defendant guilty as charged, and the sentence imposed was for a period of one year and seven months at hard labor. Burglary and grand larceny may properly be joined in different counts of the same indictment. Gordon's Case, 71 Ala. 315; Rose's Case, 117 Ala. 77 23 South. 638; Broughton's Case, 105 Ala 105, 16 So. 912. And when the verdict is general and the punishment imposed applicable to either offense, the verdict may be referred to either of them. Lucas's Case, 144 Ala. 63, 39 So. 821, 3 L. R. A. (N. S.) 412.

The record showing the conditions as above stated, we may pass over all questions attacking the validity of the verdict of conviction based on the contention that there was a variance between the allegations and proof under the second count of the indictment, because that count avers the description of certain property to be otherwise unknown to the grand jury than described, when there was certain proof before the grand jury of a better and more complete description of this property. This question is raised only in such a way as to attack the verdict of conviction as referred to the whole indictment, and not alone to the second count, and, as the first count is for burglary and clearly a good count not open to this attack, the verdict may properly be referred to the first count. Smith's Case, 142 Ala. 14, 39 So. 329; Dorsey's Case, 134 Ala. 553, 33 So. 350.

The demurrers to the second count of the indictment for failing to more particularly describe the money alleged to have been stolen, and for averring a better description to be unknown, are not well taken and were properly overruled. Leonard v. State, 115 Ala. 80, 22 So. 564; Verberg v. State, 137 Ala. 73, 34 So. 848, 97 Am. St. Rep. 17.

The question propounded to the state's witness Lon Miller, to which an exception is shown to have been reserved, elicited no prejudicial testimony as to "similarity" of the clothing worn by the defendant two days after the crime was committed (when witness saw him) to the clothes stolen. The defendant without objection permitted the state's witness John Miller to testify that the clothes the defendant was wearing a short time after the crime was committed "looked like" the clothes stolen--"looked like the same suit." We find no prejudicial ruling by the court on the evidence to which an exception was reserved.

The oral charge of the court must be construed as a whole. W U. Telegraph Co. v. Snell, 3 Ala. App. 263, 56 So. 854; Jackson v. State, 2 Ala. App. 55, 56 So. 96. When so construed, it states the law correctly as applicable to the evidence. Nor are the facts of the oral...