The defendant was convicted for the larceny of a heifer, and sentenced to the penitentiary for a term of one year and one day. The only question raised is that the court erred in refusing to grant the defendant a new trial, his contention being that there was not sufficient evidence to warrant a conviction; hence the question for us is whether there is a palpable failure of the evidence to support the verdict. Lyon v. McGowan, 156 Ala. 462, 47 So. 342.
This we cannot say was the case. The evidence, and some of the tendencies of the evidence offered by the state, if believed, were sufficient to warrant a conviction. We may not be convinced of the great weight of portions of it, or of the strength of the state's case as a whole; but the jury had the witnesses before it, saw and heard them testify. The trial judge had the same opportunity, and we are not prepared to say, after a careful consideration of all the evidence, that there was a palpable failure of the evidence to support the verdict.
The record shows that the defendant was sentenced to the penitentiary for one year and one day. Under the act approved February 18, 1919 (Acts 1919, p. 148), the sentence should have been for an indeterminate term. The judgment of conviction is affirmed, and the case is remanded, in order that the defendant may be sentenced as provided for in said act.
Judgment of conviction affirmed; remanded for proper sentence. *Page 519