Norman v. State, 212

• Court: Alabama Court of Appeals
• Writing for the Court: THOMAS, J.
• Citation: 69 So. 362,13 Ala.App. 337
• Parties: NORMAN v. STATE.
• Docket Number: 212
• Decision Date: 08 June 1915

69 So. 362

13 Ala.App. 337

NORMAN
v.
STATE.

No. 212

Court of Appeals of Alabama

June 8, 1915

Rehearing Denied June 30, 1915

Appeal from City Court of Montgomery; C.P. McIntyre, Judge.

George R. Norman was convicted of burglary, and he appeals. Affirmed. [69 So. 363]

[13 Ala.App. 339] J.H. McNeal, of Cleveland, Ohio, for appellant.

William L. Martin, Atty. Gen., and W.P. Mudd, Asst. Atty. Gen., for the State.

THOMAS, J.

The indictment contained three counts in burglary, but the last was eliminated by a nol. pros. taken by the solicitor with the consent of the court before the jury retired, which renders a consideration of the demurrers to it unnecessary, since any error the court may have committed in overruling such demurrer (Kelly Adams v. State, 69 So. 357) was rendered harmless as a result of said nol. pros., even though the nol. pros., was not taken until the jury were impaneled and the trial entered upon; the time of the taking affecting only the question of former jeopardy in the event defendant should ever again be indicted for the offense there charged. Barnett v. State, 54 Ala. 579; 1 Mayf.Dig. 701, § 2, and cases cited; 12 Cyc. 268, 269.

And while the first count of the indictment was defective for reasons as pointed out in Kelly Adams v. State, supra, where on demurrer we held bad a count which was in the same verbiage as said first count, except as to the name of the defendant, yet no ground of [13 Ala.App. 340] the demurrer here filed to the count pointed out, as did the demurrer there filed, such defect; consequently the court cannot be put in error for overruling the demurrer here. Rich Oliveri v. State, 69 So. 359; James v. State, 53 Ala. 380; Turk v. State, 140 Ala. 112, 37 So. 234.

The verdict of guilt returned by the jury was a general verdict, not specifying the count under which defendant was convicted; and under the evidence and pleading as they here appear, and where the jury was not required to specify as to which count its finding was had, and where the affirmative charge was not requested as to the separate counts, but only to the indictment as a whole, we will refer the verdict to the good count of the indictment (Handy v. State, 121 Ala. 13, 25 So. 1023, 1 Mayf.Dig. 865,§ 3), count 2 thereof, which charged "that before the finding of the indictment [the defendant] George R. Norman, with intent to steal, broke into and entered the shop, warehouse, or other building of W.H. Sanders in which goods, merchandise, or books, things of value, were kept for use, sale, or deposit." The omission from this count of the conclusion, to wit, "against the peace and dignity of the state of Alabama," required by section 7131 of the Code and by section 170 of the Constitution of 1901 to be contained in indictments, did not render this count demurrable, since the indictment itself at its end contained such a conclusion. Harrison v. State, 144 Ala. 20, 40 So. 568. The count was otherwise practically in code form and consequently free from defects. Code, § 6415, § 7161, form 27; Thomas v. State, 97 Ala. 3, 12 So. 409; Stone v. State, 63 Ala. 115.

At the conclusion of the evidence the defendant requested, as said, the general affirmative charge, and here [13 Ala.App. 341] insists that he was entitled to it for several reasons, as will be hereinafter noted and considered.

The evidence for the state, so far as is sufficient to that consideration, tended, among other things, to show: That one Avery, who was an applicant for examination to practice medicine as provided for in sections 1626 to 1646, inclusive, of the Code, came to Montgomery, where at the time (January 5 to 8, 1915, inclusive) the examination of such applicants was being conducted in pursuance of the requirements of such statute, for the purpose of standing such examination; that on Thursday afternoon of January 7, 1915, he took the chemistry examination, and that late that afternoon, upon the completion of his written answers to the questions propounded on this subject, he turned them in to the supervisor of the examination, who, putting them in a box with the other examination papers, placed the box with its contents at the State Capitol in the office of [69 So. 364] Dr. W.H. Sanders, the state health officer, for safe-keeping until after the conclusion of the examinations on Friday evening, January 8, 1915, when the papers were to be sent off out of the city on the following day to the examiners in other parts of the state for passing upon and grading; that the office of Dr. Sanders, the head of the state health department, where the papers were so placed for safe-keeping, was, when open, continuously occupied, and that when closed it was always locked, and to which no one had a key except Dr. Sanders and his assistants, who were Drs. Perry and Dinsmore--the latter being the supervisor mentioned--and except Kelly Adams, the servant; that the said Avery, the applicant, after turning in to the supervisor late Thursday afternoon or evening, as said, said chemistry examination papers,...