Ashby v. State, 6 Div. 963.
| Citation | 136 So. 483,24 Ala.App. 466 |
| Decision Date | 04 August 1931 |
| Docket Number | 6 Div. 963. |
| Parties | ASHBY v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Alonzo Ashby was convicted of using an automobile without the consent of the owner, and he appeals.
Reversed and rendered.
Bolivar B. O'Rear, of Jasper, for appellant.
Thos E. Knight, Jr., Atty. Gen., for the State.
The indictment upon which this appellant was tried and convicted in the lower court charged him with the offense of grand larceny. Specifically it charged that he feloniously took and carried away one coupé automobile of the value of $400, the personal property of Keeton-Massey Lumber & Supply Company, a corporation. The second count charged the kindred offense of buying, receiving, etc., the same property. The trial under this indictment resulted in his conviction by the jury under the following verdict: "We, the jury, find the defendant guilty of using the automobile in question without the consent of the owner, and for punishment, assess against him a fine of $25.00." Pursuant to this verdict the court pronounced judgment of guilt upon the defendant and sentenced him to hard labor for the county. From this judgment of conviction this appeal was taken.
The court below evidently proceeded upon the theory that section 8697 of the Code 1923 applied to this case. That section provides: "When the indictment charges an offense of which there are different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto, or of an attempt to commit the offense charged; and the defendant may also be found guilty of any offense which is necessarily included in that with which he is charged, whether it be a felony, or a misdemeanor."
By this action of the court it was held that the offense for which this appellant was convicted, that of "using a motor vehicle without the consent of the owner," etc., was necessarily included in the offense of grand larceny, etc. In this the court erred to a reversal.
The offense for which this appellant was convicted was created by statute in 1911. Acts of Alabama 1911, pp. 634, 650, § 35. This original enactment was carried into the 1923 Code and there appears as section 3337; and this offense thus created by statute is single and indivisible, and by no manner of construction can it be held to be included in the grand larceny statute. There is involved in it no higher or lower grade of offense, and under a charge, as here, of grand larceny, no conviction can be had for a violation of ...
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Henry v. State
...Id. at 581-582, 204 A.2d at 673. Similar views are found in McCarson v. State, 8 Md.App. 20, 257 A.2d 471 (1969); Ashby v. State, 24 Ala.App. 466, 467, 136 So. 483 (1931); State v. Corrolla, 113 Conn. 103, 154 A. 152, 153 (1931); Sandoval v. People, 176 Colo. 414, 490 P.2d 1298 (1971); Leap......
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State v. Bailey, 13521
...not required in the greater offense of larceny and cannot be regarded as a 'lesser included offense' to larceny. Ashby v. State, 24 Ala.App. 466, 136 So. 483 (1931); State v. Cobb, 2 Ariz.App. 71, 406 P.2d 421 (1965); People v. Thomas, 58 Cal.2d 121, 23 Cal.Rptr. 161, 373 P.2d 97 (1962); Sa......
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...to murder. Hargett v. State, 54 Ala.App. 544, 310 So.2d 263, cert. denied, 293 Ala. 758, 310 So.2d 264 (1975). In Ashby v. State, 24 Ala.App. 466, 136 So. 483 (1931), the Alabama Court of Appeals held that a conviction of using an automobile without the owner's consent could not be had unde......
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