Ingram v. State , 37 Ala. App. 273 ( 1952 )

PRICE, Judge.

Appellant was convicted of the offense of buying, receiving, concealing or aiding in concealing stolen property etc., and was sentenced to five years in the penitentiary.

The evidence for the State tended to show that Robert Coman and Willie Lee Mitchell burglarized the H. & H. Tire Company in Florence, Alabama, where Coman had been employed, and stole several automobile tires.

Both men admitted their guilt and testified for the State on the trial.

Coman lived directly behind the restaurant operated by appellant and his partner. He testified he sold three tires, each in its original paper wrapping, to defendant, receiving $15 for each tire. He told defendant he was employed by the H. & IT. Tire Company and bought the tires on time, his employer to deduct payment from Coman’s earnings each week.

The tires were 710 X 15 white side wall Seiberling and sold for $58 each. They were the size used on Mercury, Hudson, Oldsmobile, Kaiser Frazer, Dodge, Chrysler and small Buick automobiles. Appellant owned an Oldsmobile and his partner had a Mercury. Coman did not own an automobile.

When appellant was brought to police headquarters for questioning, he stated that Robert Coman had pawned two tires with him. Two police officers went with appellant to his home and appellant walked between the house and garage and came back with the tires.

Defendant denied buying the tires. He testified Coman pawned the tires to him for $20 and was to redeem them the next week. Coman ran a charge account at the restaurant and defendant knew he was employed by a tire company. He did not know the tires were stolen but was led to believe Coman 'had bought them.

Counsel asserts error in the rulings of the court on the admission of evidence. In each instance complained of objection was interposed after the question was answered and came too late. Womack v. State, 34 Ala.App. 487, 41 So.2d 429; Lovejoy v. State, 33 Ala.App. 414, 34 So.2d 692; Turner v. State, 34 Ala.App. 456, 41 So.2d 301; Holmes v. State, 35 Ala.App. 585, 50 So.2d 800.

Appellant insists the court erred in overruling his motion for a new trial on the ground the verdict of the jury was based on an erroneous statement of the law in the court’s oral charge to the jury. The record discloses the defendant did not except to any part of the court’s oral charge, and nothing is presented for review by this court. Middleton v. State, 27 Ala.App. 564, 176 So. 613; Copeland v. State, 32 Ala.App. 92, 21 So.2d 807; Long v. State, 35 Ala.App. 164, 44 So.2d 775.

In brief appellant’s counsel states the court refused to allow an exception to the charge because the jury had already retired from the court room.

To invoke a review of the court’s instruction on appeal, exception must be reserved pending the trial and before the jury retires to consider its verdict. Richardson v. State, 29 Ala.App. 403, 197 So. 92.

The charges refused to defendant, not fully covered by the court’s oral charge and the given charges, were incorrect statements of the law or otherwise faulty.

Clearly, from the evidence adduced, the defendant was not entitled to the general affirmative charge. Davis v. State, 33 Ala.App. 68, 29 So.2d 877, and cases cited.

There being no error in the record, the judgment of the lower court is affirmed.

Affirmed.