Opinion
8 Div. 688.
March 7, 1933. Rehearing Denied April 11, 1933.
Appeal from Law and Equity Court, Lauderdale County; Orlan B. Hill, Judge.
J. S. Young, alias Stevenson Young, was convicted of willfully removing a fence or defacing trees about monuments in a cemetery, and he appeals.
Affirmed.
The affidavit upon which the trial was had is as follows:
"Before me, E. L. McConnell Ex officio Clerk Law Equity Court of said County, personally appeared W. W. Phillips who being duly sworn does depose and say that he has probable cause for believing and does believe that J. S. Young, alias Stevenson Young, willfully removed a fence about monuments, gravestones and memorials in what is known as Parsonage Chapel Cemetery, contrary to law, within twelve months before making this affidavit against the peace and dignity of the State of Alabama.
"That J. S. Young, alias Stevenson Young, did willfully cut or injure trees within the inclosure around the monuments, gravestones and memorials in what is known as Parsonage Chapel Cemetery in said County within twelve months before making this affidavit, against the peace and dignity of the State of Alabama."
The following grounds of demurrer were interposed to the complaint:
"1. That the complaint states no cause of action.
"2. That the complaint alleges no offense known to the laws of Alabama.
"3. That the complaint does not follow the law.
"4. That the complaint is not in statutory form.
"5. That the complaint is void."
F. S. Parnell and A. A. Williams, both of Florence, for appellant.
It is permissible to aver or charge two or more misdemeanors of the same general character in the alternative. Code 1923, § 4546; Fitzpatrick v. State, 169 Ala. 1, 53 So. 1021. But the two offenses are not charged in the alternative. If it be conceded that the charge is in the alternative, then each alternative must state a complete offense under the law. Code 1923, § 4544; Griffin v. State, 22 Ala. App. 369, 115 So. 769; Gilbreath v. State, 23 Ala. App. 162, 122 So. 309. Failure of each alternative to state a complete offense renders the entire count defective. Doss v. State, 23 Ala. App. 168, 123 So. 237; Jinright v. State, 23 Ala. App. 351, 125 So. 604. An affidavit which charges two distinct offenses in the disjunctive is bad. Lewis v. State, 4 Ala. App. 141, 58 So. 802. Section 3869 was amended by the Act approved July 31, 1931 (Gen. Acts 1931, p. 824). As to the charge of cutting or removing trees, the affidavit, which was made June 6, 1932, should have alleged that the offense was committed before or since the statute was amended. Lewis v. State, supra. In prosecutions for a particular offense, evidence tending to show defendant guilty of another offense, disconnected with the crime charged, is inadmissible. McGee v. State, 24 Ala. App. 124, 131 So. 248; Johnson v. State, 19 Ala. App. 141, 95 So. 583; Wickard v. State, 109 Ala. 45, 19 So. 491; Gladden v. State, 22 Ala. App. 85, 112 So. 541; Frazier v. State, 19 Ala. App. 322, 97 So. 251; Baker v. State, 19 Ala. App. 437, 97 So. 901; Dennison v. State, 17 Ala. App. 674, 88 So. 211; Gassenheimer v. State, 52 Ala. 313. Character, whether good or bad, can only be proven by general reputation, and not by particular acts. Jimmerson v. State, 17 Ala. App. 552, 86 So. 153; Lynn v. State, 21 Ala. App. 29, 104 So. 870; Vaughn v. State, 17 Ala. App. 35, 81 So. 417. If there is a probability of defendant's innocence growing out of any part of the evidence, it is a just ground for an acquittal; and defendant was entitled to have the jury so charged. Prince v. Prince, 188 Ala. 559, 66 So. 67; Fox v. State, 205 Ala. 74, 87 So. 623.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The complaint contained two counts, the first of which substantially followed the language of the statute. The demurrer was general and to the complaint as a whole. It was properly overruled as the complaint contained a good count. Peters v. State, 166 Ala. 35, 51 So. 952; Addington v. State, 16 Ala. App. 10, 74 So. 846; Hutcherson v. State (Ala.App.) 147 So. 208. The sufficiency of the evidence and refusal of requested charges are not subject to review as the bill of exceptions does not show that it contains all the evidence. Storey v. State, 14 Ala. App. 127, 72 So. 267; Brown v. State, 21 Ala. App. 611, 110 So. 694. Where a witness testifies that defendant's character is good, the state may on cross-examination elicit evidence of particular acts of immorality on the part of defendant. Thompson v. State, 100 Ala. 70, 14 So. 878; Goodwin v. State, 102 Ala. 87, 15 So. 571; Mitchell v. State, 14 Ala. App. 46, 70 So. 991; Code 1923, § 7722; Ex parte Marshall, 207 Ala. 566, 93 So. 471, 25 A.L.R. 338; Sylvester v. State, 71 Ala. 17; Smith v. State, 129 So. 89, 29 So. 699, 87 Am. St. Rep. 47.
The demurrers which were interposed to the affidavit, etc., were properly overruled. Peters v. State, 166 Ala. 35, 51 So. 952.
The bill of exceptions does not purport to set out all the evidence, and we are not authorized to review the refusal of the affirmative charge, duly requested by appellant. Storey v. State, 14 Ala. App. 127, 72 So. 267, and authorities therein cited.
For this same reason we cannot affirm that it was error to overrule appellant's motion to set aside the verdict, etc., and grant him a new trial.
It may be that all the exceptions reserved on the taking of testimony are to rulings of such sort that reversal would not be predicated thereon by reason of the fact as to the bill of exceptions adverted to above; but, however that is, we have examined each of said rulings, and are of the opinion that none of them is prejudicially erroneous, considered in the light of the testimony contained in the bill of exceptions. See Ex parte Marshall, etc., 207 Ala. 566, 93 So. 471, 25 A.L.R. 338; also Johnson v. State, 18 Ala. App. 70, 88 So. 348.
In no ruling subject to our review do we find prejudicial error, and the judgment of conviction must be, and is, affirmed.
Affirmed.