Brannon v. State

SAYRE, J.

(1) The first count of the indictment charged in Code form that defendant was a vagrant. The fourth, on which defendant was convicted, charged that he was a keeper, proprietor, or employee of a gambling house. Evidence under the fourth count went equally as well to support the charge of the first. The Court of Appeals has found that there was such evi *30 deuce. We do not review that court on findings of that character. Such has been our ruling consistently followed. We must assume, therefore, that- there was evidence to support the verdict.

(2, 3) In the trial court defendant had, on request in writing, the general charge in his favor as to the first count. This was error of which defendant cannot complain. A similar charge as to the third count was refused. In this the trial court was inconsistent, of course, and upon this inconsistency defendant thinks he should have had a reversal at the hands of the Court of Appeals. But we are not of that opinion. If the court had given inconsistent instructions in respect of any one count, there would be some considerable point in the suggestion of error. But each count stood upon its own bottom and constituted a separate and distinct charge. That the court erred in favor of defendant in one instance was no reason why the error should be repeated in the other. The court could not be required or even expected to persist in error. There was nothing wrong in the court’s putting itself right as to the fourth count. This may seem rather too plain to need formal statement; but this expression of our view is made as the proper result of our due consideration of the case made on the application for certiorari. If, as defendant contends, he was convicted on evidence insufficient to support the finding, his last resort under the Constitution and- the statute creating the Court of Appeals was in that court.

The application for certiorari must be denied.

Certiorari denied.

All Justices concur.