
    142 So. 684
    Miller WITT v. STATE.
    8 Div. 332.
    Court of Appeals of Alabama.
    June 14, 1932.
    Wm. L. Chenault, of Russellville, for appellant.
    Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
   RICE, J.

Appellant was convicted of the offense of petit larceny. Code 1923, § 4908.

The cause is submitted here, in all respects as was the case of Irwin v. State, 24 Ala. App. 583, 139 So. 300, the decision in which was handed down on January 19, 1932.

We do not find it necessary, on the present appeal, to make any ruling upon appellant’s motion to establish the bill of exceptions under Code 1923, § 6435; this for the reason that, even according to the bill of exceptions, contained in the record as sent up here, appellant was entitled to have the jury given at his request the general affirmative charge to find in his favor.

He was charged by affidavit, upon which he was tried, with no other offense than petit larceny. Code, § 4908, supra.

There was not a scintilla of evidence that he was guilty as charged.

If it was desired to prosecute him for the offense denounced by Code 1923, § 4912, buying, receiving, concealing, etc., stolen property, the affidavit should have been so framed.

For the error in refusing to give at appellant’s request the general affirmative charge, etc., the judgment is reversed, and the cause remanded.

Reversed and remanded.  