Opinion
8 Div. 800.
March 4, 1930.
Appeal from Circuit Court, Lauderdale County; Charles P. Almon, Judge.
Cyrus Adams was convicted of burglary, and he appeals.
Reversed and remanded.
Count 2 of the indictment is as follows:
"The grand jury of said county further charge that before the finding of this indictment, Cyrus Adams entered into the storehouse of W. L. Craft whose name is otherwise unknown to the grand jury, without breaking the same, with the intent to commit a felony, against the peace and dignity of the State of Alabama."
Jas. C. Roberts, of Florence, for appellant.
An indictment for a statutory offense must charge the offense substantially in the language of the statute. Wideman v. State, 213 Ala. 170, 104 So. 442; Bell and Murray v. State, 48 Ala. 684, 17 Am. Rep. 40; Code 1923, §§ 3479, 3480.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The second count of the indictment is found under section 3480 of the Code of 1923, which provides: "If any person shall enter into any premises or building made the subject of burglary in this state, by day or by night, without breaking the same with an intent to commit a felony, etc." To constitute this crime and one of the principal elements thereof, the building charged to have been entered must have been the subject of burglary in this state. The description of the premises as: "The storehouse of W. L. Craft" without more is not sufficient to charge a crime. A storehouse, unless it is within the curtilage of a dwelling, or in which there were at the time goods, wares, merchandise, or other valuable things kept for use, sale, or deposit, is not the subject of burglary in this state, and the demurrer of defendant should have been sustained. Code 1923, §§ 3479, 3480. The defendant having been convicted under the second count of the indictment, it cannot be said that the overruling of the demurrer was without injury to the substantial rights of defendant.
As we view it, other questions raised will probably not arise on another trial.
For errors in overruling defendant's demurrer, the judgment is reversed, and the cause is remanded.
Reversed and remanded.