140 Ala. 148 | Ala. | 1903
On the evidence it was open to the jury to find that the general property in the money alleged to have been stolen was in Richard Mack and Febby Mack in common or jointly; and this not solely upon the testimony of Febby “that the money was hers and her husband’s, that what’s his is mine and what’s mine is his,” but upon that in connection with her testimony as to the commingling and manner of hoarding or keeping the coins.
It was also open to the jury to find, regardless of the question as to the general property in the money or in any part of it, that Febby Mack had such special property in all of it as its custodian and bailee as would support the averment of ownership made in the indictment.
It cannot be said, therefore, that there was a variance between the averment and the evidence as to ownership; and the court properly refused to give the affirmative charge requested by the defendant on the theory of such variance.
Those parts of the oral charge to which exceptions were reserved affirm nothing as to the sufficiency of the evidence to support the ownership laid in the indi'ct-
The facts that the Macks were husband and wife is of no consequence in the case, and our conclusion is in no degree based upon it.
Affirmed.