Assuming, since the burden of the Attorney General's argument is based upon this hypothesis and because it seems probable in the nature of things, that the state's evidence tended to show that defendant removed the hay in question by a series of acts, all affected by one preconceived purpose (Carl v. State,125 Ala. 89, 104, 28 So. 505), the two charges refused to defendant, upon which in part the reversal is based, were misleading, if not more definitely erroneous and hurtful, for that they fail to take due cognizance of the hypothesis that defendant may have been guilty by one continued series of acts.
As for the other point mentioned in the application, that the Court of Appeals erred in its conclusion that error was committed by the trial court in the failure to exclude the testimony of the prosecuting witness as to how much hay was left on the place, the opinion of the Court of Appeals proceeding on the ground — for one thing — that such testimony was patently based upon hearsay, and not upon knowledge of the facts, that ruling involved a question of fact such as this court has frequently refused to review on certiorari to the Court of Appeals. Postal Tel. Cable Co. v. Minderhout, 195 Ala. 420, 71 So. 91.
Application denied.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur. *Page 561