Opinion
8 Div. 299.
February 10, 1931. Rehearing Denied February 24, 1931.
Appeal from Law and Equity Court, Franklin County; B. H. Sargent, Judge.
Robert Cancell was convicted of petit larceny, and he appeals.
Affirmed.
The affidavit charges that defendant "feloniously took and carried away three gallons of gasoline, the personal property of Franklin County, of the value of sixty cents, in said county within twelve months before making this affidavit, against the peace and dignity of the State of Alabama."
The demurrer takes the following objections to the affidavit:
"1. The same does not charge an offense. 2. It is not alleged that Franklin County is a corporation or partnership or a natural person. 3. The ownership is not alleged as provided by law. 4. If Franklin County is a municipal corporation it cannot under the law own gasoline."
William Stell, of Russellville, for appellant.
There must be a taking and carrying away to constitute larceny. Higgs v. State, 113 Ala. 36, 21 So. 353; Thompson v. State, 94 Ala. 535, 10 So. 520, 33 Am. St. Rep. 145. The affidavit should have alleged that the property was that of a person, partnership, or corporation. Burrow v. State, 147 Ala. 114, 41 So. 987. The county cannot own property except as duly authorized by statute. Ensley Motor Car Co. v. O'Rear, 196 Ala. 481, 71 So. 704; Yielding v. Ball, 205 Ala. 376, 87 So. 785; Bice v. Foshee, 19 Ala. App. 421, 97 So. 764; 15 C. J. 531.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
If there is sufficient evidence to afford an inference adverse to appellant, the affirmative charge is not proper. Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am. St. Rep. 60, 10 Ann. Cas. 1126. The affidavit alleges the property to be that of Franklin county. The state of Alabama and Franklin county are set out in the caption. There was uncontradicted testimony that the tractor from which the gasoline was stolen was the property of Franklin county. Property owned for ordinary county purposes or held by it in its corporate capacity should be described as goods of the county. 36 C. J. 840.
Appellant was convicted of the offense of petit larceny.
The property alleged to have been stolen — several gallons of gasoline — was charged, in the affidavit upon which appellant was tried, to have been the property of "Franklin County." This was sufficient, as against the demurrers interposed. Sands et al. v. State, 80 Ala. 201.
The testimony offered on behalf of the state tended directly to show the guilt of appellant as charged; that offered on behalf of appellant was in denial. The issues were for the jury. We discover nothing worthy of further comment.
The judgment of conviction is affirmed.
Affirmed.