CLEVELAND v. STATE

3 Div. 273.

304 So.2d 237 (1974)

Frank CLEVELAND v. STATE.

Court of Criminal Appeals of Alabama.

Rehearing Denied October 29, 1974.


Attorney(s) appearing for the Case

George W. Cameron, Jr., Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Asst. Atty. Gen., for the State.


CATES, Presiding Judge.

First degree burglary: sentence, ten years.

We are compelled to reverse because upon a consideration of the entire evidence the proof failed to show that the averred breaking and entering took place in the nighttime.1 The proof would have, however, supported a charge of statutory burglary in the second degree.

Mrs. Moore (the housewife) testified that when...

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