Verberg v. State

• Decision Date: 18 June 1903
• Citation: 137 Ala. 73,34 So. 848
• Parties: VERBERG v. STATE.
• Court: Alabama Supreme Court

34 So. 848

137 Ala. 73

VERBERG v. STATE.

Supreme Court of Alabama

June 18, 1903

Appeal from City Court of Montgomery; William H. Thomas, Judge.

George Verberg was convicted of crime, and appeals.Affirmed.

Defendant was convicted under the following indictment: "The grand jury of said county charge that before the finding of this indictment George Verberg feloniously took and carried away two and 50/100 dollars, money of the United States, the further description of which is to the grand jury unknown the personal property of Willis Bell, Jr., against the peace and dignity," etc.The judgment entry recites that demurrer to the indictment was interposed, and was by the court overruled, but no demurrer is shown by the record on this appeal.The evidence for the state is sufficiently shown in the opinion.After the state had rested its case, the defendant moved to exclude all the evidence of the state upon the following grounds: "(1) Said evidence was immaterial.(2) Said evidence was irrelevant.(3) Because the evidence did not show that the offense was committed by the defendant.(4) Because the evidence did not show a felonious taking and carrying away of the money charged."This motion was overruled, and the defendant duly excepted.Upon the examination of the defendant as a witness, he testified that his name was George Viberg, and not George Verberg, and he offered to introduce envelopes which had contained letters addressed to him from different portions of the country.The court declined to allow the defendant to introduce said envelopes, and, upon the motion of the state, excluded the evidence of the defendant as to his name being Viberg, and not Verberg.To each of these rulings, the defendant separately excepted.During the argument of counsel to the jury, the defendant moved the court to be allowed to withdraw the plea of not guilty and interpose the plea of misnomer.The court overruled this motion, and refused to allow the defendant to file the plea of misnomer, and to this ruling the defendant duly excepted.After the introduction of all the evidence, the bill of exceptions then contains the following recital: "The defendant then requested the court, in writing, to charge the jury, in writing, the following written charges: Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 12.The court refused to charge the jury in writing as requested in and by said written charges, and to the refusal of the court to give said written charges to the jury the defendant did separately and severally except to the refusal of the court to give each and every written charge as aforesaid."Among the charges asked by the defendant was the general affirmative charge, instructing the jury that, if they believed the evidence, they should acquit the defendant.

Terry Richardson, for appellant.

Massey Wilson, Atty. Gen., for the State.

TYSON J.

The judgment entry shows that a demurrer to the indictment was overruled.No demurrer appears in the record, however.We cannot, therefore, know what the specific objection to the indictment was, if one was made.But whatever it may have been, it would be without avail, since its allegations are clearly sufficient, and not subject to any ground of attack by demurrer.Code, § 4905;Leonard v. State,115 Ala. 80, 22 So. 564;James v. State,115 Ala. 83, 22 So. 565;Owens v. State,104 Ala. 18, 16 So. 575;Burney v. State,87 Ala. 80, 6 So. 391;Grant v State,55 Ala. 201.

The evidence tended to show that defendant requested Bell, from whom it is alleged he stole the money, to give him a $5 bill for coin.After the exchange was made, defendant said to Bell: "I think I owe you more.Let me count the money over again."Thereupon Bell handed him back the coins to recount.Defendant then ran his hand, in which he had the coins, into his pocket, and, upon drawing them out, added 10 cents to the amount.He then placed the coins in the hand of Bell, who put them into his pocket without counting them or summing up their value.Shortly afterwards, Bell discovered that defendant had returned to him only $2.50 in silver coin and had retained the sum of $2.50 of the total amount he had handed him to...