Rose v. State
| Decision Date | 12 May 1898 |
| Citation | 23 So. 638,117 Ala. 77 |
| Parties | ROSE v. STATE. |
| Court | Alabama Supreme Court |
Appeal from law and equity court, Tuscaloosa county; J. J. Mayfield Judge.
Alex Rose was convicted of burglary and grand larceny, and he appeals. Reversed.
The appellant was tried and convicted under an indictment, the first count of which charged burglary from a storehouse, and the second count charged him with grand larceny for stealing personal property from a storehouse. The facts of the case are sufficiently stated in the opinion.
Among the charges requested by the defendant, and to the refusal to give which the defendant separately excepted, was the following: "The court charges the jury that some value of the goods taken must be proven before they can convict the defendant under the second count of the indictment."
Wm. C Fitts, Atty. Gen., for the State.
1. The venue was not proved, and for this reason, the general charge for the defendant should have been given. Dorsey v State, 111 Ala. 40, 20 So. 629.
2. The indictment was found in the circuit court of Tuscaloosa county, and filed therein on the 26th November, 1896. That court, in the absence of some statute authorizing its removal and trial in another court, alone had jurisdiction to try the cause. The act creating "The Tuscaloosa County Law and Equity Court" (Acts 1896-97, p. 262) in its ninth section provides as to criminal cases, "that all criminal causes now or hereafter pending in the circuit court of Tuscaloosa county shall, at the request of the defendant, or at the request of the solicitor hereafter provided for, be at once transferred for trial to this court herein established, *** and the clerk of said circuit court *** shall transfer to and file in the court herein established all the original papers in such causes together with certified copies of all dockets and minute entries in said causes, and thereupon this court herein established shall have exclusive jurisdiction of such causes."
There is nothing in the transcript of the record before us that shows anything touching the transfer of this cause from the circuit to the law and equity court of said county of Tuscaloosa; and from aught appearing, not a single provision of the statute authorizing the transfer of this case to the latter from the former court was complied with. We cannot presume the statute was complied with, so as to give the law and equity court jurisdiction to try the cause. Goodloe v. State, 60 Ala. 93.
3. There were two counts in the indictment, one charging burglary of a storehouse, under section 3786 of the Code of 1886, and the other, grand larceny, for stealing personal property from a storehouse, under section 3789. These counts were properly joined, and the state is not required in such case,...
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...of which would be, if given, to throw doubt or discredit on a fact in the case established without conflict of evidence.' Rose v. State, 117 Ala. 77, 23 So. 638, 639. See Reedy v. State, 246 Ala. 363, 20 So.2d 528. In Stallworth v. State, 146 Ala. 8, 41 So. 184, it was held that a similar c......
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...may properly be joined in separate counts in the same indictment...." Orr v. State, 107 Ala. 35, 18 So. 142 (1895); Rose v. State, 117 Ala. 77, 23 So. 638 (1898); Perry v. State, 25 Ala.App. 224, 143 So. 835, cert. denied, 225 Ala. 441, 143 So. 836 (1932); McDaniel v. State, 30 Ala.App. 447......
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