Opinion
5 Div. 831.
May 19, 1931.
Appeal from Circuit Court, Macon County; S. L. Brewer, Judge.
John W. Terry was convicted of assault with intent to rob, and he appeals.
Affirmed.
Count 1 of the indictment is as follows: "1st The Grand Jury of said County charge that before the finding of this indictment, John W. Terry, alias John Terry, alias John Terrey, assaulted Albert B. Hope, and Carl M. Hayes with the felonious intent, by violence to their persons, or by putting them in fear of some serious injury to their persons, to rob the First Bank of Notasulga, a corporation, the said Albert B. Hope being at said time the president of said Bank, and the said Carl M. Hayes being at said time the Cashier of said Bank, and said assault being committed in the banking house or office where the business of said bank was transacted, and where said named persons were at said time in custody and control of the property and money of said bank."
Count 2 charges an assault against Albert B. Hope, president, etc. Count 3 charges an assault against Carl M. Hayes, cashier, etc.
Count 4 is as follows: "4th. The Grand Jury of said County further charges that before the finding of this indictment, John W. Terry, alias John Terry alias John Terrey, assaulted Albert B. Hope, and Carl M. Hayes, who were at the time acting as President and as Cashier respectively, of the First Bank of Notasulga, Notasulga, Alabama, a corporation, with the felonious intent, by violence to their persons, or by putting them in fear of some serious injury to their persons, to rob the said The First Bank of Notasulga, a corporation; against the peace and dignity of the State of Alabama."
The sole ground of the demurrer is as follows: "That same charges no offense known to the law of the State of Alabama."
Wm. M. Russell and H. N. Segrest, both of Tuskegee, for appellant.
Count 4 of the indictment does not allege that the persons alleged to have been assaulted were in custody or had charge of personal property belonging to the bank or that the alleged assault took place within the banking house. It is subject to the demurrer. Sykes v. State, 68 Fla. 348, 67 So. 121.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.
The demurrer to count 4 was properly overruled. Sims v. State, 23 Ala. App. 387, 126 So. 498; Douglass v. State, 21 Ala. App. 289, 107 So. 791. At any rate, if there was error in this ruling, it was cured by the general verdict of guilty. 16 Ala. Sou. Dig. 139 (Ind. Inf. § 203); Hancock v. State, 14 Ala. App. 91, 71 So. 973. The giving or refusal of charges will not be reviewed in the absence of a bill of exceptions. Morris v. Bragan, 195 Ala. 372, 70 So. 717; Payne v. State, 10 Ala. App. 85, 65 So. 262.
Appellant was convicted of the offense of an assault with intent to rob. Code 1923, § 3303. The appeal is on the record proper, without bill of exceptions.
There was a general demurrer interposed to the indictment, and to each count thereof. This was properly overruled. Douglass v. State, 21 Ala. App. 289, 107 So. 791.
It is now too well settled to need the citation of authority that, in the absence of a bill of exceptions, the giving or refusing of requested written charges will not, ordinarily, be considered on appeal. There is nothing presented here to prevent the application of that rule.
We discover no prejudicial error, and the judgment of conviction is affirmed.
Affirmed.