Verberg v. State

137 Ala. 73

• Court: Supreme Court of Alabama
• Decided: November 15, 1902
• Status: Published

Opinion

TYSON, J.

The judgment entry shows that a demurrer to the indictment ivas overruled. No demurrer appears in the record, however. We can not, therefore, know what the specific objection to the indictment was if one was made. But whatever it may have been, it would he without avail, since its allegations are clearly sufficient and not subject to any ground of attack by demurrer. — Code, 8 4905; Leonard v. State, 115 Ala. 80; James v. State, Ib. 83; Owens v. State, 104 Ala. 18; Burney v. State, 87 Ala. 80; Grant v. State, 55 Ala. 201.

The evidence tended to show that defendant requested Bell, from whom it is alleged he stole the-money, to give him a five dollar bill for coin. After tile exchange was made, defendant said to Bell: “I think I owe you more, let me count the money over again.” Thereupon Bell handed him hack the coins to recount. Defendant then ran his hand, in which he had the- coins, into his pocket, and upon drawing them out added ten cents to the amount. lie-then placed the coins in-the hand of Bell who put them into his pocket without counting them or summing up their value. Shortly afterwards, Bell discovered that defendant had returned to him only $2.50 in silver coin, and had retained the sum of $2.50 of the total amount he had handed him to recount. It is undoubtedly the law that if the defendant had the intention to appropriate to his own use any part of the money handed hack to him to be recounted by him and kept it, he was guilty of larceny. — Levy v. State, 79 Ala. 259; Eggleston v. State, 129 Ala. 83. The fact that the taking was open and from the owner is of no consequence if the intent to steal existed. And whether or not. he had such intent was a question; for the jury. — Talbert v. State, 121 Ala. 33.

At the close of the evidence offered in behalf of the prosecution, the defendant moved the court to exclude, it. The motion contained a number of grounds. The only one insisted upon here is that there was a variance between the allegations a.nd the proof. This contention is based upon the theory that the. evidence shows that the grand jury knew, at the time they found the indictment, the description of the money charged to have been stolen, while the indictment alleges that it was unknown to them. While it is true the evidence shows that. Bell informed the grand jury that defendant had stolen silver coins from him of the value of $2.50, it does- not show that he informed them of the number and the denomination of each. Indeed, it is not shown that the witness ever knew, if this were important, the exact number of coins retained by defendant, and the denomination of each. All that he did know was, that it was silver money in small coin. From this statement it is manifest no variance is shown. There is clearly no merit in the other grounds of the motion.

The evidence introduced by defendant, which was rebutted by the State, tending to show that his name is Vi-berg, instead of the one by which he is indicted, was Avholly impertinent to the issue in the case. His plea of not guilty was an. admission that the name by which he was indicted was his true name and a waiver of the misnomer. Had this evidence remained in, it could have availed- him nothing. There was, therefore, no error in excluding it. — Wells v. State, 88 Ala. 239.

The other exceptions reserved to the admission of evidence are unmeritorious. T'hn refusal of the court to allow defendant to withdraw his plea, of not guilty and to file a plea of misnomer was matter resting in its discretion and is not revisable. — Hubbard v. State, 72 Ala. 164.

The defendant’s request of the court to give the several written charges must be construed as a request to give them in their entirety.- Bo construing it, if any one of the charges was improper, there was no error in refusing all of them. — Rarden v. Cunningham, 136 Ala. 263; 34 So. Rep. 26. Among them was the affirmative charge, which, of course, could not have been given.

Affirmed.