Vines v. StateVines v. State
- Reporters:
- , ,
- Before:
- Carr
Thе accused was indicted and convicted of the offense of burglаry. The property alleged to have been burglarized is described аs “the shop, store or warehouse of Opelika Creamery, Inc., а corporation.”
The insistence is made that the indictment is defective. The word “good” appears instead of “goods.” This apparent typographical error does not make the indictment void.
Thе appellant entered a plea-of not guilty, without attempting to raise the question by appropriate demurrers.
We-do not hold thаt it was a demurrable defect, but even so the plea to the merits had the effect of waiving the imperfection. Jordan v. State, 241 Ala. 125, 1 So.2d 591, 133 A.L.R. 1335; Allen v. State, 30 Ala. App. 147, 2 So.2d 320.
When the introduction of the testimony was concluded, appellant’s attornеy made a motion to exclude all of the state’s evidence. He posed the ground that it had not been established by the proof that the property -alleged to have been burglarized ‘was owned by the Opelika Creamery, Inc., a corporation.
A witness testified that the business was owned by Mr. Whatley. However, it is undisputed in the evidence that the place burglarized was operated by the Opelika Creamery and known in that name.
Burglary in the second degree is an offense against possession and not necessarily ownership in the sense of legal title. Evаns v. State, 34 Ala.App. 534, 41 So.2d 615; Fuller v. State, 28 Ala.App. 28, 177 So. 353.
Appellant’s counsel complains or urges in brief that there were variances between the allegations in the indictment and the proof.
The request for the general affirmative charge was rеfused, but counsel did not in any manner call the attention of the trial judge to the variances. This was a noncomplia‘nce with Circuit Court Rule 34, Title 7, Aрpendix, Code 1940.
After the commission of the offense the accusеd made a detailed confession which was reduced to writing.
At the trial thе appellant did not deny that he made the statement, but he’ claimеd that dt was made under duress of fear of physical violence. He testified in effect that one of the officers slapped him.
In this aspеct of the evidence there was an irreconcilable cоnflict. The officers testified- that no such treatment was imposed. They stated that the defendant voluntarily came to them and expressed а desire, to make a full and complete disclosure of his commission of the crime.
It is a‘legal truism that, prima facie, confessions arе involuntary. Unless the circumstances attending the confessions cleаrly disclose their voluntary character, there must be evidence аddressed to the presiding judge which will rebut the presumption of the involuntariness.
It often. arises, as in the case at bar, that there is a conflict in, thе evidence relating to the voluntary character of a confession. Under such circumstances the conflicting factual controversy is addressed *24to the court for decision. If he decides that the сonfession was voluntarily made and admits the statement, his holding is entitled to grеat weight on review by the appellate court. His conclusion will nоt be disturbed unless it appears that it is palpably contrary to the wеight of the evidence. Vernon v. State, 239 Ala. 593, 196 So. 96; Rutland v. State, 31 Ala.App. 43, 11 So.2d 768; Cook v. State, 16 Ala.App. 390, 78 So. 306.
Applying this rule in the instant case we are clear to the conclusion that the ruling of the court below should not be disturbed.
We have attempted to respond to each presented question which merits any discussion.
The judgment of the circuit court is due to be affirmed. It is so ordered.
Affirmed.