Thomas v. State

138 So. 2d 269, 41 Ala. App. 525, 1962 Ala. App. LEXIS 195

• Court: Alabama Court of Appeals
• Decided: February 20, 1962
• Docket: 4 Div. 456
• Status: Published

Opinion

CATES, Judge.

This case was tried jointly with Adams v. State, ante, p. 483, 137 So.2d 769, Novem-, ber 21, 1961. .

The only difference is that here the indictment charged thg.t Thomas “feloniously took eighty. dollars, lawful currency, of the United States of . America, * * * of the value of $82.00, the property of', * * * ” — in the form and manner set out in Code 1940, T. 15, § 259, No.' 95. The discrepancy of $80.00 being Worth $82.00 while an economic oddity need not present a legally fatal anomaly since coins of numismatic value might be adduced in evidence.

The verdict was guilty of grand larceny. Stealing money is grand larceny if the-'taking is of $25.00 or'more. Code 1940, T. 14, § 331. The effect of this verdict was to acquit Thomas of the capital felony of robbery. Code 1940, T. 15, § 323; De Graaf v. State, 34 Ala.App. 137, 37 So. 2d 130; Kelly v. State, 235 Ala. 5, 176 So. 807.

Under Barddell v. State, 144 Ala. 54, 39 So. 975, the trial court could take notice without proof aliunde that $80.00 is worth (by being legal tender) $80.00. The two dollars excess becomes surplusage. While there might be awkwardness for the State on a double jeopardy plea, yet we think Code 1940, T: 15, § 231, where, as here, no demurrer was filed, requires us to treat the discrepancy as not prejudicing any substantial right of the appellant.

Affirmed.