The first count of the indictment charges that the defendant "feloniously took and carried away from a storehouse, warehouse, or shop, to wit one thousand pounds of seed cotton, of the value of, to wit, four (4) cents per pound, the personal property of Mark Wyatt." The appellant contends that the court erroneously refused the affirmative charge as to this count, because there is no evidence that the building from which the evidence tends to show the cotton was taken was a "warehouse." The descriptive allegations as to the building are in the alternative, and the state was not confined to proof that the cotton was taken from a warehouse. There was evidence tending to show that the cotton was taken from a storehouse, and the charge was properly refused. Jefferson v. State, 100 Ala. 59,14 So. 627.
There was evidence tending to sustain the first and second counts of the complaint, and the affirmative charge as to all the counts was properly refused. Carter v. Fulgham, 134 Ala. 242,32 So. 684.
Charges in the form of charges 13 and 14 have been repeatedly condemned, and the court was under no duty to give either of them, if it be conceded there was no evidence to sustain the first and third counts of the indictment. Dorsey v. State,134 Ala. 553, 33 So. 350.
The first exceptions to the argument of the solicitor are clearly without merit, as they were comments on the evidence before the jury. While the statement of the witness Cochran, for the state, brought out on cross-examination by defendant's counsel to the effect that Sap Ragland, the father of the defendant, said that his son, and brother of the defendant, was serving a term in the penitentiary for stealing a saddle was not material evidence against the defendant, it *Page 76 was evidence in the case brought out by the defendant, and it was not improper for the solicitor to refer to it in his argument, and the court did not err in overruling the objection to such argument.
There was evidence that authorized a verdict of guilty, and the motion for new trial was properly overruled. Samples v. State, 15 Ala. App. 667, 74 So. 758.
There is no error in the record, and the judgment is affirmed.
Affirmed.