Lindsey v. State
| Decision Date | 13 June 1939 |
| Docket Number | 7 Div. 455. |
| Citation | 29 Ala.App. 25,191 So. 474 |
| Parties | LINDSEY v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 30, 1939.
Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.
Governor Lindsey was convicted of burglary in the second degree, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Lindsey v. State, 7 Div. 584, 191 So. 475.
Motley & Motley, of Gadsden, for appellant.
Thos S. Lawson, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen for the State.
The indictment was in Code form, and sufficiently charged the offense. Code 1923, § 4556, Form 27.
The building charged to have been burglarized was in the possession of R. H. Cole and his brother, who was his partner in business. The possession of the property was properly laid in R. H. Cole, and is sufficient to support a verdict upon evidence disclosing the fact that the business was operated by Cole and his brother. Spradling v. State, 17 Ala 440; Young v. State, 100 Ala. 126, 14 So. 872; Hale v. State, 122 Ala. 85, 26 So. 236; Chiles v. State, 23 Ala.App. 532, 128 So. 468.
It is insisted by the appellant that the trial court committed error in charging the jury, orally, that if the jury should find the defendant guilty, the form of their verdict "We, the jury, find the defendant guilty as charged in the indictment." It is also insisted by the appellant that the court committed error in refusing to give, at the request of the defendant, the following charge: "The Court charges the jury that the indictment in this case covers petit larceny as well as burglary and you should consider this fact in connection with all the evidence in the case." By these exceptions, the point is raised that the trial judge should have charged on the lesser degree of crime included in the indictment. There might have been some force in this contention, if there had been any evidence in the case to support such a finding by the jury. In the instant case, however, the evidence for the State made out a clear case of burglary. The evidence for the defendant was to the contrary. There was no evidence and no contention that the crime, if committed, was of a lower degree; and hence, the Court properly charged the jury that if the defendant was found to be guilty, he would be guilty as charged in the indictment, and the charge requested by the defendant was for the same reason properly refused.
There is no error in the record and the judgment is affirmed.
Affirmed.
On Rehearing.
The point made on rehearing is that the Court...
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Dixon v. State, 4 Div. 368
...of a higher offense or nothing. Kelly v. State, 235 Ala. 5, 176 So. 807; Brooks v. State, 36 Ala.App. 310, 55 So.2d 366; Lindsey v. State, 29 Ala.App. 25, 191 So. 474. Within this latter application of the rule against abstractness, we have a sub-refinement: a charge that guilt of an attemp......
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...in the indictment and fix his punishment at death." Thus, there was no variance between the indictment and verdict. Lindsay v. State, 29 Ala.App. 25, 191 So. 474, cert. denied, 238 Ala. 374, 191 So. 475 (1939); Smith v. State, 35 Ala.App. 580, 50 So.2d 791 (1951). The jury, by bringing back......
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...title to be in the wife did no establish a fatal variance in the indictment and proof. Title 15, Section 245, Code 1940; Lindsey v. State, 29 Ala.App. 25, 191 So. 474; certiorari denied 238 Ala. 374, 191 So. 475; Nix v. State, 33 Ala.App. 603, 36 So.2d 452; Lowe v. State, 32 Ala.App. 176, 2......
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