Peabody v. State

• Decision Date: 16 May 1944
• Docket Number: 4 Div. 822.
• Citation: 18 So.2d 691,31 Ala.App. 448
• Parties: PEABODY v STATE.
• Court: Alabama Court of Appeals

18 So.2d 691

31 Ala.App. 448

PEABODY v STATE.

4 Div. 822.

Alabama Court of Appeals

May 16, 1944

Rehearing Denied June 6, 1944.

W R. Belcher, of Phenix City, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst Atty. Gen., for the State.

RICE Judge.

Appellant was indicted for the offense of burglary; the indictment being drawn under the provisions of Code 1940 Tit. 14, Sec. 86--and charging burglary in the second degree. He was duly tried before a jury; found guilty as charged; and his punishment fixed at imprisonment in the penitentiary for the term of two years.

He was represented below, and here, by able counsel. In his brief filed here, sad counsel with commendable candor asserts: "In order that we may come more readily to the real crux of the matter, and in order that we may more speedily direct the court's attention to the only issue in the case, it is here admitted that the corpus delicti was properly established; that is to say we admit that the place of business was legally the subject of burglary; that it was properly secured; that its ownership was properly established and that the place of business was burglarized by someone and that the articles alleged to have been stolen were, in fact, stolen by someone. Our only insistence in the case, therefore, is that the evidence offered by the State falls far short of that necessary to sustain a conviction and that the trial court erred in refusing the affirmative charge in (each) case"--it being here noted that this case was tried jointly with the case of Harry Rivers v. State, 18 So.2d 693.

And in addition to what counsel has stated, we may add that a careful inspection of the record reveals that appellant was tried in all respects in accordance with the law. If he was denied any constitutional safeguard, we are unable to detect it.

We are not sure that we understand just how the holding by a majority of our Supreme Court in the cases of Rutherford v. State, 237 Ala. 613, 188 So. 385, and Jones v. State, 237 Ala. 614, 188 So. 384, to the effect that the court would look to a bill of exceptions which was stricken, to see whether or not an appellant was deprived of any constitutional right, should be applied, now that bills of exceptions have been abolished by law. Gen.Acts Ala.Reg. Session 1943 p. 423. But in whatever way applied, here, it is clear that nothing appears indicating that appellant was denied any constitutional right.

So we come to his counsel's single insistence: "That the evidence offered by the State falls far short of that necessary to sustain a conviction and that the trial court erred in refusing the affirmative charge in (the) case."

And this requires us to give close attention to the Act of the Legislature approved July 12th 1943--Gen.Acts.Ala.Reg.Session 1943 p. 423, now codified as Sec. 827 (1) et seq. of Title 7 of the Code of 1940 Cumulative Pocket Part 1943 of Volume 2.

This act by its terms became effective on September 1st, 1943; and the case before us originating by indictment returned on October 7th 1943, the said act above, approved on July 12th, 1943, governs and controls in all matters which it includes in its terms.

And the very first provision of said act is that "bills of exceptions in the trial of cases at law in the circuit...