Cole v. State

On Rehearing.

HARWOOD, Judge.

In his brief in support of his application for rehearing counsel for appellant asserts we were in error in stating that in each instance where an exception was noted to a portion of the court’s oral charge such portion excepted to was excluded by the trial court,

Counsel insists that one such portion was not excluded.

In this connection the record shows the following:

“Mr. Baldwin: The defendant further excepts to that portion of the court’s oral charge wherein the court said, in substance, in other words if he embezzled this money and part of the act was in this county it does not make any difference where the act was completed.

“The defendant further excepts to that portion of the court’s oral charge wherein the court said, in substance, I charge you as a matter of law that if the defendant without authority took the rubber stamp out of this county and used it in another county, during which time he had the intent to fraudulently convert, that is an act of embezzlement for which he can be convicted in this county.

“The Court: I don’t remember that I said it just exactly like that, but if I said it like that I will exclude it.”

It was our view that the court’s remarks related to both paragraphs. Certainly it cannot be determined from the state of the record that it should be considered as relating to only the last paragraph. The burden is upon the appellant to show error. When the record upon which error is claimed is ambiguous this burden has not been met.

This aside, the entire statement of the lower court, of which the first paragraph above constitutes a part reads as follows :

“All right, gentlemen, it comes down to this, the defendant in this case says that if there is any violation of the law it was not in Covington County, and therefore he cannot be prosecuted in this county. I charge you as a matter of law, gentlemen, that the offense must take place in this county before he can be convicted in this county, but when I use the word offense I do not mean the entire transaction has to take place in this county. I mean this, that some act forming a part of the alleged embezzlement must take place in this county, and if it was completed somewhere else — in other words, if he embezzled this money, part of it or one of the acts started in this county and he had the intent at the time, then it wouldn’t make any difference, gentlemen, if it was completed in some other county. He could be convicted in this county.”

The above represents a correct statement of the law applicable to this case. Section 94, Title 15, Code of Alabama 1940, supra. Therefore, according full weight to ■counsel’s contention his point is without merit.

Application overruled.