Burrage v. State

113 Ala. 108

Opinion

COLEMAN, J.

There were two counts in the indictment, one charging the defendant with larceny and the second, with receiving or concealing stolen property. The indictment did not present a case, which authorized the court to require the solicitor to elect on which count he would prosecute. This question has been often adjudicated.-Orr v. The State, 107 Ala. 35, and authorities. The solicitor elected to proceed upon the second count. Upon motion of the defendant, the court excluded certain confessions upon the ground that these confessions were evidence of the larceny, and not of the offense for which the State had elected to prosecute. There was some evidence excluded which tended to support the prosecution. The ruling of the court was favorable to the defendant.

The court did not err in refusing the charges requested, ^relative’to the confessions. These confessions had been excluded, and the charges were abstract, and erroneous in law.

There was evidence from which a jury might infer the guilt of the defendant, and the court properly refused the affirmative charge requested.

There was no error of record, and the motion in ai'rest of judgment was properly overruled. The evidence offered was not relevant on a motion in arrest of judgment. In criminal cases, motions for a new trial are not revisable.

Affirmed.