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In Jetton v. State, 29 Ala. App. 134, 195 So. 283 (citing Raisler v. State, 55 Ala. 64, which was later overruled), this court, treating of a single count indictment which omitted an averment indispensable to burglary, held the "fatal defect — glaringly apparent," and one which must be noted here even though the insufficiency was not raised below.
Summary of this case from Smith v. StateOpinion
8 Div. 947.
December 19, 1939. Rehearing Denied January 9, 1940.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
Buck Jetton was convicted of burglary, and he appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Jetton v. State, 239 Ala. 306, 195 So. 284.
S. A. Lynne, of Decatur, for appellant.
An indictment for burglary must lay, with precision, the ownership of the house in which the offense has been committed, and the proof must correspond with the averment. Beall v. State, 53 Ala. 460; Graves v. State, 63 Ala. 134; Chaney v. State, 225 Ala. 5, 142 So. 104.
Thos. S. Lawson, Atty. Gen., and Noble J. Russell, Asst. Atty. Gen., for the State.
The second count meets the requirements. In an indictment for burglary it is not necessary to allege ownership of the building, but only the occupancy or possession thereof. The allegation that the place was uninhabited met the rule just as if occupancy or possession by a named person had been alleged. Pipkin v. State, 21 Ala. App. 179, 106 So. 391; Adams v. State, 13 Ala. App. 330, 69 So. 357; Fuller v. State, 28 Ala. App. 28, 177 So. 353. But if the indictment be held defective, same would not constitute reversible error; appellant did not demur to it or in any other manner object to it, but plead not guilty thereto. Therefore, appellant has waived his right to object to the indictment and cannot raise the question for the first time on appeal, unless the indictment be determined to be void. Hudgens v. State, 22 Ala. App. 403, 116 So. 306; McClesky v. State, 28 Ala. App. 97, 179 So. 394; State v. Collins, 200 Ala. 503, 76 So. 445; Cheatwood v. State, 22 Ala. App. 165, 113 So. 482; Id., 216 Ala. 692, 113 So. 915. But, lacking no essential element of the crime charged, it cannot be held to be void. It charges every essential element, following the language of the Statute. Code 1923, § 3479.
The single count of the indictment, upon which this appellant was convicted, is — omitting formal parts — as follows, to-wit: "Count Two: The Grand Jury of said County further charge that before the finding of this indictment, Buck Jetton, with intent to steal, broke into and entered an uninhabited dwelling house, shop, warehouse, store house or smoke house, in which goods, merchandise, clothing, meat or flour, things of value, were kept for use, sale or deposit, against the peace and dignity of the State of Alabama."
It is conceded that this count of the indictment was intended to charge the offense of burglary, under the provisions of Code 1928, § 3479. But it is fatally defective, and will not support the judgment of conviction; as we will undertake to show.
Long ago it was said that "one of the essentials of a charge in offenses against property is the negation of the defendant's ownership by such averments as show affirmatively that the property, general or special, against which the crime is laid, is in another." Emmonds v. State, 87 Ala. 12, 6 So. 54. So far as we can ascertain that is the law, today. And there seems no doubt but that it is our duty to note, here on this appeal, the defect — the fatal defect — glaringly apparent in the count of the indictment upon which this appellant was convicted, even though its insufficiency was not called to the attention of the court below. See Raisler v. State, 55 Ala. 64.
It is apparent that, as drawn, every word contained in the aforementioned count of the indictment might be true, and defendant, at the same time, be guilty of no offense — because, for aught alleged, the building might have been his own. Both the Supreme Court, and this Court with its approval, have held that indictments so drawn cannot support a conviction. See authorities supra; and, in addition, Mazett v. State, 11 Ala. App. 317, 66 So. 871; and Noah v. State, 15 Ala. App. 142, 72 So. 611.
The judgment is reversed and the cause remanded.
Reversed and remanded.