Hawkins v. State , 15 Ala. App. 626 ( 1917 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Charlie Hawkins was convicted of the larceny of a cow and he appeals. Reversed and remanded.

The contention of the appellant is that the indictment read "Jim Yank," instead of "Jim Tank," in laying the possession of the property to be that of Jim Tank. The defense was that defendant had won the cow from another party in a gambling game, and did not steal the cow from the prosecuting witness. The court has inspected the original indictment transmitted to the court under the rule, and finds that the name of the person alleged to be the owner of the property as laid in the indictment is "Jim Tank." This disposes of the appellant's contention that there was a variance between the averments and proof.

Under the evidence in the case the court erred in refusing the following charge requested by defendant: "If, after considering all the evidence, the jury have a reasonable doubt whether defendant took the cow unlawfully, or whether he purchased it in good faith from Hardin, they will find the defendant not guilty."

We have examined the oral charge of the court, and hold that it does not render harmless the refusal of this charge.

Reversed and remanded.