The Montgomery advertiser., 1903-07-09
vERBERY V. THE STATE.

Appeal from the City Court of Mont gomery.
 1. Indictment for larceny; sufficiency thereof-An indictment for the larceny of money. which charges that the de- fendant "feloniously took and carried
 away two and 5o-loo dollars. money of the United States. the further descrip- ton of which is to the grand jury
 unknown. the personal property of." etc.. lis sufficient and not subject to demur- Ter.
 ?. Larceny of money; when shown to exist.-If one receives q bank bill or other money to change and places 1t in
 his pocket with the fraudulent purpose
 at the time of converting it to his own
 use, and refuses to deliver said money
 or the change or any part of the change on demand, the taking is felonious and
 the transaction constitutes larceny. | 3. Same; same: case at bar.-Where one who has been asked to change a five dollar bill. after delivering the change he asks the other person to let him count the money over again, and upon the money being returned to him and after again counting 1t he re-delivers the change but retains a portion of the amount which had been handed to him
 to recount If he had the intention to ap- propriate to his own use any part of the money handed back to him to be re- counted and kept 1t, he Is guilty of lar
 ceny; and the fact that the taking was open and was from the owner, Is of no consequence.
 {. Larceny; intent a question for the jury.-On the trial of a defendant under an indictment for larceny, the question of the intent with which the defendant
 took the property Is question for the determination of the jury; and this is true although the taking was openly done in the presence of the owner of the prop erty and of others.
 5. Larceny; variance; when not shown
 to exist.-On a trial under an indictment
 for larceny. which charges the defend ant with feloniously taking and carry
 ing away two and 50-100 dollars money of the United States, the further descrip.
 tion of which is to the grand jury un-
 known" and the evidence shows that
 the owner of the money informed the
 grand jury that the defendant had stolen
 silver coin from him of the value of two dollars and fifty cents. but 1t does not
 show that he informed them of the num- Der and denomination of the coin, nor Is it shown that the owner knew the exact
 number of coins retained by the defend
 ant or the denomination of each. there Is no variance between the allegations of the indictment and the complaint
 shown.
 6. Pleas and defenses; waiver of mis-
 nomer.-A plea of not guilty in a crim- inal case, is waiver of misnomer in
 the statement of the defendants name in the indictment. and no advantage can
 be taken of the misnomer on the trial either by the introduction Of evidence | showing such or by a request for jn-
 structions to the jury or otherwise. !. Same withdrawing plea of not gull | ty, and filing plea of misnomer discre- | tionary with the court and not revisable. Whether the defendant in criminal case shall be permitted to withdraw his plea of not guilty and interpose plea of mis- homer. Is a matter addressed to the
 sound discretion of the trial court; and the exercise of this discretion is not re- visable on appeal.
 8. Charges of court to jury; when re-
 quest is for the giving of charges in
 their entirety.-The recital in the bill of exceptions that the defendant requested the court in writing to charge the jury in writing the following written
 charges" numbered from to F. and that the court refused to charge the jury in
 writing 'as requested in and by said written charge" and that the defendant
 separately and severally excepted to the refusal of the court to give each and every written charge as aforesaid" Is not
 a request to give separately each of said
 charges. but is a request to give all of
 them as an entirety; and. therefore, If
 any one of the charges was improper,
 there was no error in refusing all of them.
 A nnin hxrT