Sims v. State , 120 Ala. 380 ( 1898 )

McCLELLAN, C. J.

The indictment contained two counts. The first charged burglary, the second grand larceny. The jury found the defendant guilty of burglary under the first count. On this state of case the rulings of the court upon charges requested by the defendant having reference to a supposed variance between the description of the property alleged to have been stolen in the second count and the evidence — as, for instance, that the count charged larceny of treasury notes and the evidence showed larceny of silver certificates — if abstractly erroneous, involved no injury to the defendant, and will, therefore, not avail to reverse the judgment. Code .of 1896, § 4333. It. is, therefore, of no consequence whether charges 15, 18, 19 and 20, requested by the defendant and refused, were correct statements of the law or not.

Others besides the defendant were suspected of the offense charged in this indictment and prosecuted therefor at the same time that defendant was proceeded against, on the theory that they and the defendant were jointly concerned in the alleged criminal act. Under these circumstances a charge that the jury must acquit the. defendant if they find that others may have as reasonably committed the offense as the defendant, oy may just as well have committed it, is, to say the least, misleading and confusing. The jury may well have found that there was as much reason for believing the other parties proceeded against committed the offense as that the defendant did, and at the same time have had no reasonable doubt that the defendant was guilty. They might have found that the defendant and the others were jointly implicated in the criminal act alleged. It was doubtless upon these considerations that the court properly refused charges 16 and 17 requested by the defendant.

It must be confessed that the evidence against the defendant was not entirely satisfactory to the conclusion of his guilt, but it was quite sufficient for submission to the jury on that inquiry, and the court did not err in refusing to give the affirmative charge on the whole indictment' nor the affirmative charge on the count for burglary requested by the defendant.

We have examined the several rulings of the trial' court on the competency of testimony to which exceptions were reserved, and find them so patently free from error as not to require discussion.

The judgment of the circuit court must be affirmed.