Gray v. State, 8 Div. 977.

• Decision Date: 02 April 1940
• Docket Number: 8 Div. 977.
• Citation: 30 Ala.App. 190,6 So.2d 901
• Parties: GRAY v. STATE.
• Court: Alabama Court of Appeals

6 So.2d 901

30 Ala.App. 190

GRAY v. STATE.

8 Div. 977.

Alabama Court of Appeals

April 2, 1940

Rehearing Denied May 20, 1941.

Appeal from Circuit Court, Morgan County; W. W. Callahan Judge.

The indictment is as follows: "The Grand Jury of said county charges that before the finding of this indictment Coleman Gray with intent to steal in daytime broke into and entered the dwelling house of James D Bonds-in which goods, merchandise or clothing, things of value were kept for use, sale or deposit, against the peace and dignity of the State of Alabama."

Defendant demurred to the indictment upon the grounds (1) No offense is alleged (2) it fails to aver the building broken into was within the curtilage of dwelling house; (3) it does not aver said building was or was not occupied at the time of breaking; and (4) breaking is not alleged to have occurred since the Act under which indictment was found was passed.

J. N. Powell, of Hartselle, for appellant.

Thos. S. Lawson, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

The appellant defendant below, was charged by indictment with the offense of burglary of a dwelling house in the daytime.

The demurrer to the indictment was not in point and therefore properly overruled.

Upon the trial, the defendant was convicted; the jury returned its verdict, viz.: "We the jury find the defendant guilty as charged in the indictment."

The record proper in this transcript appears to be free from irregularity; certainly, no reversible error is apparent on the record. The bill of exceptions purports to set out substantially all of the evidence, and conviction of this appellant of the offense of burglary, upon the evidence adduced, appears to this court as being of very doubtful propriety. However, the question of the sufficiency of the evidence to warrant a conviction is not presented for our consideration on this appeal. The affirmative charge in behalf of defendant was not requested; and the purported motion for a new trial appearing only upon the record proper, no mention thereof appearing in the bill of exceptions, renders the court helpless, and without authority to accord to defendant the relief sought to be obtained by said motion.

In seeking a review by the appellate courts upon the ruling of the lower court overruling a motion for a new trial, the statute does not require that the motion and judgment thereon shall be set out in the bill of exceptions, but under the statute, Code 1923, Section 6088, Code 1940, Tit. 7, § 764, it is mandatory that the bill of exceptions must contain a sufficient recital to show the making of such motion, the ruling thereon, and an exception thereto. These are the express terms of the statute.

Pending the trial numerous objections were interposed upon the introduction of evidence. In some few instances exceptions were reserved to the adverse rulings of the court. Each of these exceptions has had our consideration, and in no instance does it appear that the rulings of the court in this connection were infested with error. As to the instances where objections were made, and no exception reserved to the court's rulings thereon, we cannot, of course, put the court to error; for it is elementary, in the...