416 BOURNE /). STATE. [192 BOURNE v. STATE. Crirn. 3976
OPinion delivered March 9, 1936. 1. CRIMINAL LAW—ASSIGNMENT OF ERROR.—Allegation in motion for new trial that verdict was contrary to law, contrary to evidence and contrary to both law and the evidence is sufficient to raise the question of the sufficiency of the evidence to sustain conviction. 2. CRIMINAL LAW—NECESSITY OF OBJECTION.—Error in permitting co-defendant in a prosecution for larceny to testify that , he and defendant committed larceny and that the spoils were divided cannot be reviewed where record fails to show that defendant objected or took exceptions. 3. CRIMINAL LAW—VERDICT.—In prosecution for grand larceny the jury returned the following verdict: "We, the jury, find the defendant guilty and fix the penalty at one year." Held sufficient as against the objection that court could not determine whether defendant had been convicted of grand or petit larceny, and therefore could not assess just punishment. 4. CRIM I N AL LAW—MOTION FOR NEW TRIAL.—Mation for new trial on ground of newly-discovered evidence is addressed to the sound discretion of trial court, and Supreme Court will not reverse unless that discretion has been abused. Appeal from Pike Circuit Court ; . A. P. Steel,-,Eidge; affirmed. .Carl E. Bailey, Attorney General, and Guy E. Wil-liams, Assistant, for appellee.
BOURNE V. STATE. 417 McHANEY,' J. Appellant was , convi.eted of the crime 'Of: grand larceify air& sentenced to hne' year. in the : State penitentiary. He haS apPealed to this court; but has• not favored us with a brief in his behalf.i i• • •. • • In his motion for a • new trial he asSigns eleven errors of the trial court. The first three are that the verdict is contrary to the law, the evidence, and both the law and the evidence. These raise the sufficiency of the evidence which we have Carefully examined and find it both ample and substantial. We think it unnecessary to detail it. Another assigninent is that the court erred in permitting:the. witness, Lindell• Johnson, to testify that appellant's , c67 defehdant admitted that he . and appellaht Committed the larceny, and.. that the:.latter diyided the the. .record does .not disclose that 'appellant made any'objection . to the question that elicited such testhhOhy and'ho-exception taken. •Other assign-• thents relate • te the 'adMisgiOn and eXclusiori:df . evidence which we have examihed fihd them Withoht merit. Assigmhent •No. 10 challenges' the correctness hf instruction No. 2, given at the request .Of the State,: relatihg to the defehse .of an:alibi:. A comparison of this instruction with .the one approved by this court, on the: same subject in Ware v. State, 59 Ark. 379, 27 S. W. 485, will shoW that it is ahhost . a verbatim . copy of the latteri. So, oh this point,' Ware . v. State, S Up :ra, 'is .decisiVe' -of• this cohtraTy ° to appellaiit's jfit. y, returned, this 'Verdict , We, the 'jur . y, . find the . defenchint 'guilty and fix the penalty* . .at One year. It is' assigned as a gr.Onlid for new trial that thi'S 'verdiet is so vague and uncertain that the . dottii could hot deterMine . whether jtii-v meant to . C . onvict Of grand or 'petit laPeeny,.and could not' a§sess a justPuniShment... What *ive'sdid 'in the . 'tecent..ease of''Caruthers 'aud Clayton v. Stae, 191 'Ark. 1070, 89'S. W. (2d) 732, hpplies here. See also 'Case's cited there'. • ' • • • A siip:Plethental Motion f6r-'6, nOii : trial, On the grmind hf hewly-di§covered , evidence; „ was-. filed 'and' overrnlea. Such a motion'addresses'itSeif to -the sMind 'legal discretion of the 'trial' 'Court; and this:court will not ieverse eXcept where ail abuse . of such . discretion. is shown , Or an
f 418 [192 apparent 'injustice has been done. Ward v. State, 85 Ark. 179, 107 S. W. 677 ; Young v. State, 99 Ark. 407, 138 S. W. 475; Cole v. State, 156 Ark. 9, 245 S. W. 303. No abuse of discretion is shown. The judgment is affirmed.
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