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AMERICAN STATE REPORTS.

VOLUME 97.

(15)

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gun, the personal property of person

Standing ones.- a person takes a piece of
At, 209 part of it, to his ow1 1st
ka dengan Prestion for Jury. - Under an indictment

on the , allihough the taking was in the pres
out in duistan that the name by which the accused

- ren of Misomer.-A plea of not guilty
LAN-Vistorier.-The refusal of a court to allow
The fifteen bis pea of not guilty and to file & plea of

en resting in the discretion of the court, and is not
Vatrones -A request to give written charges to the
Heineken, jis the appellant.

tum paral, for the state.

Mi pea la maes piren bin, or the change thereior,

as a 10 consequence, if the intent to steal

ATA LA UA a Waiver of the fact that it is a mis

insertpis properly refused, if any of them is improper.

CASES

TREME COURT

ALABAMA

TERBERG T. STATE.

13. 11. Soita, 948.

biel bien, the further description of Faich is to open to demurret. p. 18.1

agents en and places it in his own poeket with

is a pity at laras, and the fact that the taking was

se posting of the intent with which the aceused took

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CASES

IN THE

SUPREME COURT

OF

ALABAMA.

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VERBERG V. STATE.

[137 Ala. 73, 34 South, 848.) LARCENY.–An Indictment for larceny charging that the ac. eused "feloniously took and carried away a certain sum of "money of the United States, the further description of which is to the grand jury unknown, the personal property of a person named, is sufficient and not open to demurrer. (p. 18.)

LARCENY-Changing Money.-If a person takes a piece of money from another to change and places it in his own pocket with the unlawful intent to convert it, or any part of it, to his own use, and refuses to deliver the money given him, or the change therefor, on demand, he is guilty of larceny, and the fact that the taking was open and from the owner is of no consequence, if the intent to steal existed. (p. 18.)

LARCENY-Intent-Question for Jury.—Under an indictment for larceny, the question of the intent with which the accused took the property is for the jury, although the taking was in the presence of the owners. (p. 18.)

INDICTMENT-Waiver of Misnomer.-A plea of not guilty to an indictment is an admission that the name by which the accused is indicted is his true name and a waiver of the fact that it is a mise domer. (p. 19.)

CRIMINAL LAW-Misnomer --The refusal of a court to allow an accused to withdraw his plea of not guilty and to file a plea of misnomer is matter resting in the discretion of the court, and is not revisable on appeal. (p. 19.)

TRIAL--Instructions.-A request to give written charges to the jury ag an entirety is properly refused, if any of them is improper. (p. 19.)

1

T. Richardson, for the appellant.
1. Wilson, attorney general, for the state.

Am. St. Rep., Vol. 97—2 (17)

77 TYSON, J. The judgment entry shows that a demurTer to the indictment was overruled. No demurrer appears in the record, however. We cannot, therefore, know what the specific objection to the indictment was if one was made. But whatever it may have been, it would be without avail, since its allegations are clearly sufficient and not subject to any ground of attack by demurrer: Code, sec. 4905; Leonard v. State, 115 Ala. 80, 22 South. 564; James v. State, 115 Ala. 83, 22 South. 565; Owens v. State, 104 Ala. 18, 16 South. 575; Burney v. State, 87 Ala. 80, 6 South. 391; Grant v. State, 55 Ala. 201.

The evidence tended to show that defendant requested Bell, from whom it is alleged he stole the money, to give him a five dollar bill for coin. After the exchange was made, defendant said to Bell: "I think I owe you more, let me count the money over again." Thereupon Bell handed him back the coins to recount. Defendant then ran his hand, in which he had the coins, into his pocket, and upon drawing them out added ten cents to the amount. He then placed the coins in the hand of Pell who put them into his pocket without counting them or cumming up their value. Shortly afterward, Bell discovered that defendant had returned to him only two dollars and fifty cents in silver coin, and had retained the sum of two dollars and fifty cents of the total amount he had handed him to recount. It is undoubtedly the law that if the defendant had the intention to appropriate to his own use any part of the money handed back to him to be recounted by him and kept it, he was guilty of larceny: Levy v. State, 79 Ala. 259; Eggleston v. State, 129 Ala. 83, 87 Am. St. Rep. 17, 30 South. 582. The fact that the taking was open and from the owner is of no consequence if the intent to steal existed. And whether or not he had such intent was a question for the jury: Talbert v. State, 121 Ala. 33, 25 South. 690.

At the close of the evidence offered in behalf of the prosecution, the defendant moved the court to exclude it. The motion contained a number of grounds. The only one insisted upon here is that there was a variance between the allegations and the proof. This contention is based upon the theory that the evidence shows that 78 the grand jury knew, at the time they found the indictment, the discription of the money charged to have been stolen, while the indictment alleges that it was unknown to them. While it is true the evidence shows that Bell informed the grand jury that defendant had stolen silver coing from him of the value of two dollars and fifty cents, it does not

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