Opinion
2 Div. 636.
May 10, 1938. Rehearing Denied June 21, 1938.
Appeal from Circuit Court, Perry County; John Miller, Judge.
William Lee was convicted of burglary, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Lee v. State, 236 Ala. 578, 183 So. 909.
The following is the indictment: "The grand jury of said county charge that, before the finding of this indictment, William Lee, with intent to steal, broke into and entered the store of Bryant B. Lester, in which goods, merchandise or other valuable things were kept for use, sale or deposit, against the peace and dignity of the State of Alabama."
The demurrer to the indictment contained the grounds that the indictment was vague and indefinite; that it was defective, in that it failed to conform to the statutory form; and that it was further defective, in that the place alleged to have been burglarized was not sufficiently described.
J. C. Locke, of Marion, for appellant.
The indictment is not in proper form, is vague and indefinite, and the demurrer thereto should have been sustained.
A. A. Carmichael, Atty. Gen., and Chas. L. Rowe, Asst. Atty. Gen., for the State.
The indictment is in the form prescribed, and contains the necessary requirements for a sufficient indictment. Code 1923, § 4556 (27); Overton v. State, 60 Ala. 73. The bill of exceptions fails to state that it contains all, or substantially all, of the evidence, and any state of evidence will be presumed to uphold the rulings of the trial court as to evidence and charges. Hardwick v. State, 26 Ala. App. 536, 164 So. 107; Alford v. State, 21 Ala. App. 652, 111 So. 606; Wilson v. State, 113 Ala. 104, 21 So. 487; Storey v. State, 14 Ala. App. 127, 72 So. 267.
The indictment was in the form prescribed by the statute, and sufficiently describes the storehouse alleged to have been burglarized. Noles v. State, 24 Ala. 672.
The demurrer to the indictment was properly overruled.
The other questions presented for review are based upon the rulings of the court upon the evidence, and the court's refusal to give certain designated charges presented and requested by the defendant.
The bill of exceptions does not purport to contain all of the evidence, in the absence of which, this court will presume any state of facts necessary to sustain the court in its rulings in passing upon the sufficiency of the evidence. Franks v. State, 26 Ala. App. 430, 161 So. 549; Andrews v. State, 17 Ala. App. 456, 85 So. 840; Terry v. State, 17 Ala. App. 527, 86 So. 127; Patrick v. State, 18 Ala. App. 335, 92 So. 87; Johnson v. State, 19 Ala. App. 308, 97 So. 150; Horton v. State, 20 Ala. App. 55, 100 So. 620.
As was stated in the case of Horton v. State, 20 Ala. App. 55, 100 So. 620, "There was ample evidence to support the verdict of guilty. However, the bill of exceptions does not purport to set out all the evidence, and this court will on appeal presume that there was testimony to justify the conviction, and all the rulings of the primary court if under any state of proof they would be free from error." This statement of the rule is sustained by ample citations of authority.
We find no error in the record, and the judgment is affirmed.
Affirmed.