Wilson v. State

THOMAS, J.

The defendant was tried and convicted of larceny. The evidence against him was entirely circumstantial, and he requested, in writing, three charges, which were refused. The first was the general affirmative charge, and, as there was evidence upon which the jury would have been authorized to find him guilty, it was properly refused. The second is almost a literal duplicate of, and embodies the same proposition as is contained in, written charge 2, given at his request. — Pickens v. State, 115 Ala. 42, 22 South. 551. It is true, as contended by appellant’s counsel, that the given charges are not set out in the bill of exceptions, and that we cannot review charges not shown in the bill of exceptions; yet they are set out in the record proper, and counsel evidently overlooked the fact that our last Code (section 5364) makes all given charges a part of the record. We can look to these, for the purpose of sustaining the action of the lower court, to see if any of them are duplicates of, or cover substantially the propositions embodied in, the refused charges assigned as error. — Choate v. Ala. C. So. Ry. Co., 170 Ala. 593, 54 South. 507.

The third charge requested by defendant was properly refused for reasons pointed out in the following-cases: Thomas v. State, 106 Ala. 19, 17 South. 460; Phillips v. State, 162 Ala. 14, 50 South. 194; Montgomery v. State, 169 Ala. 12, 53 South. 991.

The jury were instructed with utmost favor to the defendant in written charges, given at his request, on every theory and phase of the evidence. We are of opinion that he had a fair trial according to law, though we have discussed only the alleged errors urged in the brief of appellant’s counsel.

The judgment of conviction is affirmed.

Affirmed.