Opinion
4 Div. 312.
December 14, 1937. Rehearing Denied January 11, 1938.
Appeal from Circuit Court, Dale County; J. S. Williams, Judge.
Henry Blackman and John Peacock were convicted of buying, receiving, or concealing stolen property, and they appeal.
Affirmed.
Certiorari denied by Supreme Court in Blackman v. State, 235 Ala. 359, 179 So. 390.
J. E. Acker, of Ozark, and Speight Tiller, of Dothan, for appellants.
The indictment charges that appellants bought, received or concealed eleven pigs of the value of $35, whereas the proof showed the property lost was six pigs and two sows. Sows are not pigs and, therefore, the value of the six pigs was less than $25, and a sentence as for a felony was improper. Code 1923, § 4909; Brannon v. State, 26 Ala. App. 291, 160 So. 726; Marsh v. State, 3 Ala. App. 80, 57 So. 387; Parker v. State, 39 Ala. 365; Lavender v. State, 60 Ala. 60; Washington v. State, 58 Ala. 355. The verdict was void. It did not respond to the issues, finding defendants guilty "in county 1," and it failed to ascertain the value of the pigs such property not being of the class the stealing of which is made grand larceny regardless of value. Code 1923, §§ 4908, 4912; Tennison v. State, 18 Ala. App. 159, 89 So. 826; Koonce v. State, 27 Ala. App. 46, 165 So. 601; Busbee v. State, 25 Ala. App. 328, 146 So. 286; Brown v. State, 47 Ala. 47; Vandegrift v. State, 151 Ala. 105, 43 So. 852. The State failed to prove defendants knew the pigs were stolen, or had reasonable ground for so believing. Defendants could not, therefore, be legally convicted. Jordan v. State, 17 Ala. App. 575, 87 So. 433; Farzley v. State, 231 Ala. 60, 163 So. 394; Glover v. State, 21 Ala. App. 423, 109 So. 125; Cohen v. State, 16 Ala. App. 522, 79 So. 621.
A. A. Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen., for the State.
The term "pigs", as used in the indictment, is inclusive and embraces "sows". Brannon v. State, 26 Ala. App. 291, 160 So. 726. The verdict is self-correcting in the use of the word "county" instead of "count". It is sufficient. Webb v. State, 138 Ala. 53, 34 So. 1011; McDonald v. State, 118 Ala. 672, 23 So. 637; Chappell v. State, 19 Ala. App. 648, 100 So. 75. It was not necessary that the jury ascertain the value of the property. But by referring to count 1 the verdict in effect found the value to be as laid in said count. The question of appellants' guilt was one for the jury, and was properly submitted to them. Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Shelton v. State, 144 Ala. 106, 42 So. 30; Way v. State, 155 Ala. 52, 46 So. 273.
We recognize our duty under Code 1923, § 3258. And we have endeavored to perform it.
But appellants are represented by competent counsel, who have filed here an excellent brief on their behalf. So we feel that we are justified in confining the remarks we shall make to the matters treated in said brief.
The first count of the indictment under which appellants were tried charges them with "buying, receiving, concealing, or aiding in concealing eleven pigs of the value of $35.00, the personal property of Cora Brunson, knowing that it was stolen, and not having the intent to restore it to the owner." The verdict returned was: "We the jury find the defendants guilty in county 1."
Upon this verdict the court entered a judgment against the appellants, adjudging them "guilty on count 1, as charged in the indictment," and sentenced them to imprisonment in the penitentiary for an indeterminate period of not less than twenty-four nor more than thirty months — a punishment prescribed for the offense of grand larceny.
We take it that the word "county" found in the jury's verdict constitutes a self-correcting typographical error — meant, clearly, for the word "count." We so hold.
And the fact that two of the animals involved were described in the testimony as "sows" rather than as "pigs" we consider of no vitiating importance. A "sow" may none the less be a "pig"; and a "pig," doubtless, is often a "sow." Or, at least, so we hold.
Appellants' astute counsel advance the proposition that while — to quote them — "obviously a 'pig' is a 'hog' (Lavender v. State, 60 Ala. 60), it does not follow that a 'sow' is a 'pig'." But we have announced our view.
It is conceded that it was shown without dispute that a number of "pigs" were stolen from (Mrs.) Cora Brunson. Her testimony was that they were worth $35, or more.
Whether or not appellants bought, received, concealed, or aided in concealing this stolen property — in the language of the first count of the indictment — was, as we read the testimony, a question for the jury to decide. Its verdict seems to us definite, and warranted by the evidence. There was no error in refusing to give to the jury at appellants' request the general affirmative charge to find in their favor.
Since, as we have said, the verdict returned was "warranted by the evidence," there was no error in overruling appellants motion to set same aside as being "opposed to the great weight of the evidence."
So far as the ground(s) of appellants' motion for a new trial resting upon "newly discovered evidence" is, or are, concerned, we have only to remark that said newly discovered evidence does not meet the requirements specifically set out by our Supreme Court in the opinion in Fries v. Acme White Lead Color Works, 201 Ala. 613, 79 So. 45, for the granting of a new trial thereon or therefor.
It results that we find no ruling apparent, anywhere, prejudicially erroneous. And the judgments are affirmed.
Affirmed.