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152 Ala. 77

Bates v. State

Supreme Court of Alabama

Decided July 2, 1907

Supreme Court of Alabama · decided 1907-07-02

<p>1. Criminal Law; Complaint; Affidavit; Amendment. — Where an affidavit charged that the affiant had probable cause for believing and did believe that the offense of petit larceny had been committed, and charging a named person with committing the offense, it was proper to allow an amendment to the affidavit, properly charging the offense designated in the first affidavit.</p> <p>2. Same; Appeal; Harmless Error. — Where the original affidavit was amended and trial had upon the amended affidavit it is immaterial whether the original affidavit was sufficient or not, and the rulings of the trial court on the original affidavit, if error, were harmless.</p> <p>3. Same; Affidavit; Sufficiency. — An affidavit charging that af-fiant had probable cause for believing and did believe that a named person feloniously took and carried away eight chickens of the value of $1.25, the personal property of affiant, is a sufficient compliance with section 4600, Code 1896, to support a prosecution for petit larceny.</p> <p>4. Trial; Instruction; Suffieieneij. — A general affirmative charge which failed to submit the credibility of the testimony to the jury is bad in form.</p> <p>5. Larceny; Evidence; Ownership. — Notwithstanding the affidavit charged felonious taking of eight chickens, a conviction for larceny may he had under such affidavit on proof of the taking of seven chickens belonging to the affiant.</p> <p>6. Criminal Law; New Trial; Appeal. — The rulings of a trial court on an application for a new trial in a criminal case are not reviewable on appeal.</p>

Relies on Miles v. State · Simpson v. State · State v. Murphy

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1907-07-02

How this case has been cited

Cited by 14 later decisions — most recently October 1976

14 state decisions

7019071910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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SIMPSON, J.

¶1The appellant was convicted of the offense of petit larceny. The original affidavit was amended, and the trial was on said amended affidavit. Snch amendment is authorized by law. — Gandy v. State, 81 Ala. 68, 1 South. 35; Simpson v. State, 111 Ala. 6, 20 South. 572; Tatum v. State, 66 Ala. 465; Perry v. State, 78 Ala. 22. This being true, it is immaterial whether the original affidavit was sufficient, and the rulings of the court in regard to that affidavit do not constitute reversible error.

¶2The amended affidavit was sufficient. — Code 1896, § 4600; Acts 1896-97, p. 810, § 15. Added to this, the demurrers do not appear in the record proper, and it does not affirmatively appear that there was error. The amendment to the affidavit does not come within the principle laid down in Miles v. State, 94 Ala. 106, 11 South. 403, for the reasons, first, that the original affidavit in this case does charge an offense, by name; and, second, in this case the affidavit was amended and reverified, and it was not, as in that case, trying the party on the mere statement of the solicitor, unsupported by an affidavit charging the offense.

¶3The point is insisted on by the defendant that charges Nos. 1 and 5, requested by the defendant, should have been given, because the affidavit charged the larceny of eight chickens, the property of Amanda Eenne-field, while the proof showed that only seven of the chickens belong to her. In addition to the fact that both charges were asked in bulk, and the failure to give *81both excepted to in bulk, both charges were bad — the first, because it did not submit to the jury the credibility of the testimony; and the other, which is numbered 5, was properly refused, as the larceny was committed, even though only seven of the chickens belonged to the party named. — State v. Murphy, 6 Ala. 846. There was no error in the refusal to give said charges.

¶4The overruling of the motion for a new trial cannot be reviewed. — Thomas v. State, 139 Ala. 80, 36 South. 734.

¶5The judgment of the court is affirmed.

¶6Affirmed.

Tyson, C. J., and Haralson and Denson, J.J., concur.
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