Opinion
8 Div. 475.
February 9, 1932. Rehearing Denied March 22, 1932.
Appeal from Morgan County Court; W. T. Lowe, Judge.
Roy Norris was convicted of attempting to burglarize, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Norris v. State, 225 Ala. 219, 142 So. 441.
Carl W. Vann, of Birmingham, for appellant.
Where two offenses grow out of the same transaction, defendant can only be convicted in one. Trawick v. City of Birmingham, 23 Ala. App. 308, 125 So. 211.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
In this case the defendant was being tried under both indictments, and a conviction or acquittal of one would not preclude a conviction of the other, and vice versa. Cooper v. State, 16 Ala. App. 76, 75 So. 624; Brown v. State, 15 Ala. App. 612, 74 So. 733.
This case was tried, in the court below, by agreement, jointly with case numbered here on appeal as 8 Div. 473, 142 So. 440. What was said by us in the opinion in that case, present term Mss., would seem to apply equally here, and the affirmance of the judgment of conviction in this case might well rest thereon. But, in answer to the argument by appellant's counsel that neither judgment of conviction can be sustained, this on the theory that but one act was the basis of both — and to support which argument he cites our case of Trawick v. City of Birmingham, 23 Ala. App. 308, 125 So. 211 — we are constrained to remark that, here the situation shown does not comport with the facts serving as the basis of our holding in the said Trawick v. City of Birmingham. In the case cited there was but one act; here the evidence tended, satisfactorily and sufficiently, to show two, i. e., the "possession of the tools" and the "attempt to burglarize" the building, etc. We perceive nothing in the holding in the Trawick Case, supra, impelling us to hold that the judgment of conviction cannot be sustained in this case.
Finding nowhere prejudicial error, the said judgment is affirmed.
Affirmed.