Benefield v. State

Supreme Court of Alabama

Benefield v. State

208 So. 2d 455, 282 Ala. 19, 1968 Ala. LEXIS 1076

CourtSupreme Court of Alabama

DecidedMarch 14, 1968

Docket5 Div. 852

StatusPublished

Cited by7 cases

This text of 208 So. 2d 455 (Benefield v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Benefield v. State, 208 So. 2d 455, 282 Ala. 19, 1968 Ala. LEXIS 1076 (Ala. 1968).

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Opinion

LAWSON, Justice.

This is a petition for writ of certiorari to review and revise the judgment and opinion of the Court of Appeals of Alabama in the case of Benefield v. State of Alabama, 208 So.2d 449.

Benefield was convicted of grand larceny in the Circuit Court of Randolph County. He appealed to the Court of Appeals, where the judgment of the trial court was affirmed in a two-to-one decision, with Judge Johnson dissenting.

The majority opinion of the Court of Appeals held that:

“The evidence presented a question for the jury to determine as to whether the taking of the automobile was done with a felonious intent, or whether the taking was under a bona fide claim of right, and was sufficient to sustain the verdict. The motion for a new trial was properly refused. Ruffin v. State, 30 Ala.App. 344, 6 So.2d 455, cert. den., 242 Ala. 345, 6 So.2d 456.”

The majority opinion also upheld several rulings of the trial court on the admission and exclusion of evidence. We are not here concerned with the holdings of the Court of Appeals in regard to these rulings, inasmuch as none of them are challenged in the petition for writ of certiorari.

We have said that on certiorari to the Court of Appeals, this court will consider only questions which are treated in the opinion of that court which are challenged in the petition for the writ of certiorari and which are argued in brief filed in support of the petition. Liberty Mutual Ins. Co. v. Manasco, 271 Ala. 124, 123 So.2d 527; Harris v. State, 272 Ala. 146, 130 So.2d 231; Ex parte Thaggard, 276 Ala. 117, 159 So.2d 820; City of Gadsden v. Elrod, 250 Ala. 148, 33 So.2d 270.

In the petition presently under consideration, the only holdings of the Court of Appeals which are challenged are those to the effect that the evidence presented a jury question and was sufficient to sustain the verdict, hence the motion for new trial was properly overruled.

[20]*20The dissent of Judge Johnson seems to be based in the main on his disagreement with the majority relative to the rulings of' the trial court as to the admissibility of evidence offered. Unlike Shuttlesworth v. City of Birmingham (Ala.), 206 So.2d 348,¹ we observe nothing in the dissenting opinion which would justify us in going to the original record. ' We accept the facts as set out in the majority opinion and, being of the opinion that the majority arrived at the correct conclusion from the stated facts, yre deny the petition for certiorari.

Petition denied.

LIVINGSTON, C.. J., and GOODWYN and COLEMAN, JJ., concur.

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LAWSON, Justice.

This is a petition for writ of certiorari to review and revise the judgment and opinion of the Court of Appeals of Alabama in the case of Benefield v. State of Alabama, 208 So.2d 449.

Benefield was convicted of grand larceny in the Circuit Court of Randolph County. He appealed to the Court of Appeals, where the judgment of the trial court was affirmed in a two-to-one decision, with Judge Johnson dissenting.

The majority opinion of the Court of Appeals held that:

“The evidence presented a question for the jury to determine as to whether the taking of the automobile was done with a felonious intent, or whether the taking was under a bona fide claim of right, and was sufficient to sustain the verdict. The motion for a new trial was properly refused. Ruffin v. State, 30 Ala.App. 344, 6 So.2d 455, cert. den., 242 Ala. 345, 6 So.2d 456.”

The majority opinion also upheld several rulings of the trial court on the admission and exclusion of evidence. We are not here concerned with the holdings of the Court of Appeals in regard to these rulings, inasmuch as none of them are challenged in the petition for writ of certiorari.

We have said that on certiorari to the Court of Appeals, this court will consider only questions which are treated in the opinion of that court which are challenged in the petition for the writ of certiorari and which are argued in brief filed in support of the petition. Liberty Mutual Ins. Co. v. Manasco, 271 Ala. 124, 123 So.2d 527; Harris v. State, 272 Ala. 146, 130 So.2d 231; Ex parte Thaggard, 276 Ala. 117, 159 So.2d 820; City of Gadsden v. Elrod, 250 Ala. 148, 33 So.2d 270.

In the petition presently under consideration, the only holdings of the Court of Appeals which are challenged are those to the effect that the evidence presented a jury question and was sufficient to sustain the verdict, hence the motion for new trial was properly overruled.

[20]*20The dissent of Judge Johnson seems to be based in the main on his disagreement with the majority relative to the rulings of' the trial court as to the admissibility of evidence offered. Unlike Shuttlesworth v. City of Birmingham (Ala.), 206 So.2d 348,¹ we observe nothing in the dissenting opinion which would justify us in going to the original record. ' We accept the facts as set out in the majority opinion and, being of the opinion that the majority arrived at the correct conclusion from the stated facts, yre deny the petition for certiorari.

Petition denied.

LIVINGSTON, C.. J., and GOODWYN and COLEMAN, JJ., concur.

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208 So. 2d 455, 282 Ala. 19, 1968 Ala. LEXIS 1076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benefield-v-state-ala-1968.

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