Davis v. State, 4 Div. 582.
| Decision Date | 04 June 1940 |
| Docket Number | 4 Div. 582. |
| Citation | 198 So. 153,29 Ala.App. 421 |
| Parties | DAVIS ET AL. v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 25, 1940.
Appeal from Circuit Court, Russell County; J. S. Williams, Judge.
Woodrow Davis and Raymond Martin were convicted of grand larceny, and they appeal.
Affirmed.
Certiorari denied by Supreme Court in Davis v. State, 198 So 155.
W. R Belcher and J. B. Hicks, both of Phenix City, for appellants.
Thos S. Lawson, Atty. Gen. and Francis M. Kohn, Asst. Atty. Gen., for the State.
This is a joint appeal, by the two appellants, from a judgment of conviction, for the offense of grand larceny. The property involved, and alleged to have been stolen, was a Ford automobile, of the value of $700, the personal property of Bessie Lewis.
The corpus delicti was fully proven by the undisputed testimony. The material and controlling question upon the trial, and here as well, was the identity of the perpetrators of the offense charged; and on this question there was sharp and direct conflict in the testimony, presenting, therefore, a question for the jury to determine.
During the trial, the court's ruling upon the admission of the testimony was invoked, and exceptions reserved, but a few times. Upon examination and consideration of these exceptions, we find no error which, in our opinion and judgment would authorize or justify this court in putting the trial court to error; certainly we find, in this connection no erroneous ruling of the court sufficient for us to declare that the substantial rights of the two accused men were prejudiced to the extent that, for these reasons, the judgment of conviction should be reversed. Rule 45, Code 1923, 4th Vol., p. 895.
The question of the sufficiency of the evidence to sustain the judgment of conviction is not tested, except by the motion for a new trial. The affirmative charge was not requested, nor was there a motion to exclude the evidence. The ruling of the court in denying defendant's motion for a new trial is relied upon principally to effect a reversal.
The motion of defendants for a new trial was originally based upon three grounds, all practically of the same import, i. e. "that the verdict was contrary to the law and the evidence." The motion was afterwards amended, the amendment was predicated upon several enumerated grounds, each of which upon the hearing of the motion, was supported by affidavits of named affiants, and designated as newly discovered testimony, with proper averments as to diligence, etc., in securing. same.
The rules of law relative to the two grounds of the motion for a new trial, above stated, have been definitely settled by innumerable decisions of this Court and the Supreme Court. (1) "That, 'the verdict of the jury [is] contrary to the evidence';" a new trial, on the ground that the verdict is contrary to the evidence, will not be granted where it affirmatively appears that the questions involved are for the determination of the jury, unless it is clearly apparent that the verdict is palpably wrong or unjust. Smith v. State, 23 Ala.App. 488, 128 So. 358, 359, certiorari denied, 221 Ala. 217, 128 So. 359; 7 Alabama Digest, Criminal Law, + 935 (1). (2) As to whether or not the verdict of the jury was contrary to law, there could be no tenable insistence to this effect. The law denounces and prohibits the offense of grand larceny, and prescribes punishment for the person regularly found to be guilty of such offense. Here, as stated, the testimony disclosed conclusively that grand larceny had been committed by some person or persons; hence, the controlling and conclusive question involved upon the trial and this appeal is, Did the two persons (appellants) accused of the offense commit this crime, or did they not?
The several remaining insistences that error prevailed in the action of the court in overruling and denying the motion for a new trial are founded upon certain matters designated as newly discovered evidence. As stated, hereinabove, these matters were supported by several affidavits, all of which have been carefully examined and considered, and we discover that this so-called newly discovered testimony relates to the question of the alibi of the...
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