136 So. 838 | Ala. Ct. App. | 1931
Lead Opinion
As relating to the charge of robbery, the facts in this case are no different from the facts disclosed in Louis v. State (Ala.App.)
We did not, however, mean to hold that no criminality could be inferred from the evidence adduced on the trial. There is embraced in the indictment a charge of grand larceny, and if this defendant participated in the transaction detailed by the injured party, aiding and abetting therein, and the jury should find from the evidence that a larceny had been committed, such finding would justify a verdict of conviction for grand larcency, although the facts do not justify a conviction for robbery.
The evidence in this case, if believed beyond a reasonable doubt, discloses the facts that the injured party, an old ignorant negro woman, had on deposit in the bank $290; that three young negro men got her in an automobile driven by this defendant, took her to her home where she got her saving bank book, took her to the bank, induced her to draw the money out of the bank, and turn it over to Louis, one of the three; that she received nothing in return for the money; that she had never seen the man to whom she delivered the money until that day; that after Louis got the money the woman was taken to the top of a hill about one-half mile from her home, put out of the car, after which the defendant and his associates left. From the surrounding circumstances it is quite clear that a fraud was perpetrated on the old woman and that her money was taken from her. It was for the jury to say from all the surrounding facts and circumstances whether the taking was felonious, and, if so, did this defendant aid or abet in the taking?
The general charge was asked and refused. The charge was not limited to the charge of robbery, but extended to the lesser degrees of crime embraced in the indictment. Its refusal was not error.
No exception was reserved to the action of the court in overruling the motion for a new trial, and hence that ruling cannot be here reviewed. We find no prejudicial error in the record, and the judgment is affirmed.
Affirmed.
Concurrence Opinion
I must perforce concur in the affirmance of the judgment of conviction from which this appeal was taken, notwithstanding this court reversed and remanded the companion case wherein the principal had been convicted of robbery, and this court construed the undisputed *409
evidence as being insufficient to sustain the charge of robbery. Louis v. State (Ala.App.)
If the requested and refused affirmative charge in this case has been confined in its terms to the offense of robbery, its refusal would have been error. But the charge sought to direct a verdict of acquittal of all the charges comprehended and included in the charge of robbery; it was, therefore, properly refused for under the evidence in this case a verdict of guilty as to one of the lesser offenses would have been justified.
As stated, in the opinion of Samford, J., in this case: "No exception was reserved to the action of the court in overruling the motion for a new trial and hence that ruling cannot be here reversed." The foregoing statement simply means, in the absence of an exception to the ruling of the court in denying a motion for a new trial, nothing is here presented for consideration of this court and, however meritorious the motion may appear, in the absence of an exception, shown in the bill of exceptions, this court has no authority either to consider or revise the court's ruling in this connection. Swinea v. State,
As stated hereinabove, I perforce must concur in the affirmance of the judgment of conviction from which this appeal was taken, for the reason that as here presented we are without authority to hold otherwise.