
    178 So. 246
    FORRESTER v. STATE.
    4 Div. 350.
    Court of Appeals of Alabama.
    Jan. 11, 1938.
    A. A. Carmichael, Atty. Gen., and Clarence M. Small and J. Render Thomas, Jr., Asst. Attys. Gen., for the State.
   RICE, Judge.

Appellant was convicted of the offense of burglary in the second degree. Michie’s 1936 Supplement of Alabama Code of 1928, § 3481 (1).

It was' alleged in the count of the indictment under which he was found guilty that he (with others not on trial) “with intent to steal, broke into and entered the chicken house of G. W. Jeffcoat, a building within the curtilage of the dwelling house of the said G. W. Jeffcoat, but not forming a part thereof, in which chickens, things of value, were kept for use, sale, or deposit.”

Candor compels us to confess that as we read the testimony in the case it more properly supports that count in the indictment charging appellant with “petit larceny.” But the responsibility for the proper application of the law to the facts belongs, in -the first instance, to the nisi prius judge and the jury.

Here, they have acted as appears. No motion for a new trial presents their action to us for review.

We have carefully read the testimony in the case; and we do not feel that we are able to affirm that there was not “substantial evidence tending to prove .all elements of (the) charge” (upon which appellant stands convicted). See Ex parte Grimmett, 228 Ala. 1, 152 So. 263. Hence, allowing the reasonable presumption due in favor of the trial court, who saw and heard the witnesses, we will not say that he erred in refusing to give to the jury at appellant’s request the general affirmative ■charge to find him not guilty of burglary.

No other question of importance, than ■such refusal, appears; hence the judgment is affirmed.

Affirmed.  