Opinion
4 Div. 868.
December 12, 1944. Rehearing Denied January 9, 1945.
Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.
Tank Reeves was convicted of burglary in the first degree, and he appeals.
Affirmed.
See also ante, p. 226, 16 So.2d 697; 245 Ala. 237, 16 So.2d 699.
Certiorari denied by Supreme Court in Reeves v. State, 20 So.2d 727.
O.S. Lewis, of Dothan, for appellant.
The indictment was subject to demurrer in that it failed to allege when the offense was committed. The Act of 1935 (now Code 1940, Tit. 14, § 85) created a new offense of burglary in the first degree, making it a capital offense, whereas, burglary before that in the nighttime was not a capital offense and the statute of limitation of three years was applicable. Bibb v. State, 83 Ala. 84, 3 So. 711; Holt v. State, 238 Ala. 219, 193 So. 101.
Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.
It is not necessary to state the precise time when the offense was committed, but may be alleged to have been committed on any day before the finding of the indictment, unless time is a material ingredient of the offense. Code 1940, Tit. 15, § 237; Dean v. State, 240 Ala. 8, 197 So. 53; Bryan v. State, 18 Ala. App. 199, 89 So. 894; Holt v. State, 238 Ala. 219, 193 So. 101; Hardwick v. State, 26 Ala. App. 536, 164 So. 107; Id. 231 Ala. 151, 164 So. 112. Although time when offense was committed need not be alleged in indictment, it must be proved on trial that it was committed within period which is prescribed as a bar to prosecution, and if this is not done, the prosecution fails. McDowell v. State, 61 Ala. 172; Kimbell v. State, 165 Ala. 118, 51 So. 16. The indictment informed appellant that he was charged with offense occurring after June 6, 1935, for if the State had offered evidence tending to prove it at a time prior thereto, defendant would have been entitled to the affirmative charge. Gambling v. State, 22 Ala. App. 442, 116 So. 507; Parker v. State, 2 Ala. App. 127, 56 So. 872. Burglary of dwelling house has been a felony since 1875, and if the crime occurred at any time since then, appellant would have been subject to indictment for a felony. While the ruling on demurrer was correct, if it had been error, it would have been harmless. Acts 1875, § 4343; Code 1896, § 3786; Code 1896, § 4417; Code 1907, § 6415; Code 1923, § 3479; Sup.Ct. Rule 45, 7 Code 1940, p. 1022.
While we have performed our full duty under the provisions of Code 1940, Title 15, Section 389, it appears that the only question deserving mention by us is that raised by the action of the court in overruling appellant's demurrers to the single count of the indictment which was returned against him on May 18th 1943.
Said count, omitting formal parts, is in the following language, to-wit: "The Grand Jury of said County Charge that, before the finding of this Indictment Tank Reeves, whose name is to the grand jury otherwise unknown, did, in the nighttime, with intent to steal, break into and enter the inhabited dwelling house of C.M. Guillot, which was occupied by Ruth Guillot, a person lodged therein, against the peace and dignity of the State of Alabama."
It will be noted that this indictment was in exact accordance with form 29 of "Forms of Indictment" prescribed by Code 1940, Tit. 15, § 259 — the form prescribed in the Code for indictments charging burglary in the first degree as defined in Code 1940 Tit. 14, § 85. And by provision of the very Code section itself it was sufficient.
The ingenious argument of appellant's astute counsel — if we understand it — that the indictment was defective for failing to allege the time when said burglary was committed, is answered by the fact that any other or lesser degree of burglary, committed prior to the passage of the act in 1935 from which Code 1940, Tit. 14, § 85 was taken, covered by its averments, would necessarily have been barred by the Statute of Limitations when same was returned by the grand jury. And hence there was no uncertainty as to what it was, with which appellant was charged. Adams v. State, 60 Ala. 52; Laminack v. State 18 Ala. App. 399, 92 So. 502, certiorari denied Ex parte Laminack, 207 Ala. 712, 92 So. 920.
The trial court overruled without error the demurrers to the indictment. And the judgment is affirmed.
Affirmed.