This case is submitted to this court on motion of the Attorney General to strike the petition for writ of certiorari and on the merits.
Motion to Strike
The motion to strike is grounded on the failure of petitioner to serve the Attorney General with a copy of the petition.
In Adkins v. State, 268 Ala. 548, 109 So.2d 749, we said:
To like effect is our holding in Bozeman v. State, 269 Ala. 610, 114 So.2d 914.
Our statements in the Adkins and Bozeman Cases, supra, to the effect that copies of the petition must be served on the opposite party in order to give this court jurisdiction to consider a petition for writ of certiorari to the Court of Appeals were inadvertently made and will not be followed.
It is without dispute that the Attorney General was properly served with a copy of the brief filed in support of the petition.
The motion to strike the petition is denied.
On the Merits
The evidence as set out in the opinion of the Court of Appeals tends to show that Thorpe had no legal right to the possession of the Buick automobile.
As to whether Thorpe entertained an intent to convert the car to his own use or to deprive Miss Everett thereof was a question for the jury.
The openness of his conduct in taking and keeping the automobile does not negative the existence of such an intent to the extent that the law requires that the State's evidence be excluded on motion or that the affirmative charge be given in the defendant's favor. McKinney v. State, 12 Ala.App. 155, 68 So. 518, and cases cited; Dickens v. State, 142 Ala. 49, 39 So. 14.
The evidence as set out in the opinion of the Court of Appeals does not support a conclusion that the verdict was contrary to the weight of the evidence.
SIMPSON, STAKELY, GOODWYN, MERRILL and COLEMAN, JJ., concur.