Bates v. State , 152 Ala. 77 ( 1907 )

SIMPSON, J.

The appellant was convicted of the offense of petit larceny. The original affidavit was amended, and the trial was on said amended affidavit. Snch amendment is authorized by law. — Gandy v. State, 81 Ala. 68, 1 South. 35; Simpson v. State, 111 Ala. 6, 20 South. 572; Tatum v. State, 66 Ala. 465; Perry v. State, 78 Ala. 22. This being true, it is immaterial whether the original affidavit was sufficient, and the rulings of the court in regard to that affidavit do not constitute reversible error.

The amended affidavit was sufficient. — Code 1896, § 4600; Acts 1896-97, p. 810, § 15. Added to this, the demurrers do not appear in the record proper, and it does not affirmatively appear that there was error. The amendment to the affidavit does not come within the principle laid down in Miles v. State, 94 Ala. 106, 11 South. 403, for the reasons, first, that the original affidavit in this case does charge an offense, by name; and, second, in this case the affidavit was amended and reverified, and it was not, as in that case, trying the party on the mere statement of the solicitor, unsupported by an affidavit charging the offense.

The point is insisted on by the defendant that charges Nos. 1 and 5, requested by the defendant, should have been given, because the affidavit charged the larceny of eight chickens, the property of Amanda Eenne-field, while the proof showed that only seven of the chickens belong to her. In addition to the fact that both charges were asked in bulk, and the failure to give both excepted to in bulk, both charges were bad — the first, because it did not submit to the jury the credibility of the testimony; and the other, which is numbered 5, was properly refused, as the larceny was committed, even though only seven of the chickens belonged to the party named. — State v. Murphy, 6 Ala. 846. There was no error in the refusal to give said charges.

The overruling of the motion for a new trial cannot be reviewed. — Thomas v. State, 139 Ala. 80, 36 South. 734.

The judgment of the court is affirmed.

Affirmed.

Tyson, C. J., and Haralson and Denson, J.J., concur.