Adams v. State

• Decision Date: 08 June 1915
• Docket Number: 213
• Citation: 69 So. 357,13 Ala.App. 330
• Parties: ADAMS v. STATE.
• Court: Alabama Court of Appeals

69 So. 357

13 Ala.App. 330

ADAMS v. STATE.

No. 213

Court of Appeals of Alabama

June 8, 1915

Appeal from City Court of Montgomery; C.P. McIntyre, Judge.

Kelly Adams was convicted of burglary, and he appeals. Reversed and cause remanded.

Omitting formal charging part, the indictment is as follows:

(1) Kelly Adams, with intent to steal, he broke into and entered the office of W.H. Sanders, a shop, store, warehouse or other building, structure, or inclosure, in which goods merchandise, or books, things of value were kept for sale or deposit.

(2) Kelly Adams with intent to steal, broke into and entered the shop, store, warehouse, or other building of W.H Sanders, in which goods, etc., as in first account.

(3) Kelly Adams, with intent to steal, broke into and entered the Alabama State Capitol, a building in which goods, merchandise, and books, things of value were kept for use, sale, or deposit, against the peace and dignity of the state of Alabama.

J.H. McNeal, of Cleveland, Ohio, for appellant.

William L. Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

BROWN J.

The form prescribed for indictments for burglary is not broad enough to cover every offense denounced by the statute. Hawkins v. State, 8 Ala.App. 234, 62 So. 974; Ashmon v. State, 9 Ala.App. 29, 63 So. 754.

The first count of the indictment in this case does not follow the form, but charges that the defendant, "with intent to steal, broke into and entered the office of W.H. Sanders, a shop, store, warehouse, or other building, structure, or inclosure, in which goods, merchandise, or books, things of value, were kept for use, sale, or deposit," etc.

To constitute burglary as denounced by section 6415 of the Code the building, structure, or inclosure broken and entered must be within the statutory description, and, if it is a "structure or inclosure" other than a shop, store, warehouse, or building, to constitute the breaking and entry burglary, the "structure or inclosure" must have been specially constructed or made for the keeping of goods, wares, and merchandise, or valuable things. In the quoted averments of the first count the office of W.H. Sanders is described in one of the alternatives as "a structure," and in another as an "inclosure," and does not contain the averment stated above that is essential to bring the "structure or inclosure" within the statute, and the demurrer taking this point should have been sustained. Code, § 6415; Stone v. State, 63 Ala. 115; Smith v. State, 140 Ala. 146, 37 So. 157; Hawkins v. State, supra; Parker v. State, 114 Ala. 690, 22 So. 791; Thomas v. State, 97 Ala. 3, 12 So. 409; Williams v. State, 7 Ala.App. 124, 62 So. 294; Horton v. State, 60 Ala. 72.

The second count of the indictment follows the form, and the demurrers to this count were properly overruled. Lacy v. State, 68 So. 706; Kelly v. State, 72 Ala. 244; Henderson v. State, 70 Ala. 23, 45 Am.Rep. 72; Thomas v. State, supra; Smith v. State, supra.

The rule which requires the negation of the defendant's right to break and enter necessitates that the ownership of the property be definitely laid in the indictment. Emmonds v. State, 87 Ala. 12, 6 So. 54; Mazett v. State, 66 So. 871. Burglary, like trespass, is an offense against the possession, and hence the test for the purpose of determining in whom the ownership of the premises should be laid in an indictment is not the title, but the occupancy or possession at the time the offense was committed. The ownership should be laid in the occupant at the time the offense was committed, unless the occupant is a mere servant. Thomas v. State, supra; Hale v. State, 122 Ala. 85, 26 So. 236; 6 Cyc. 210 (IV, D, 11, c). Where the building is occupied by a mere servant as the house of the master and in the course of his master's employment, and not as a tenant, the ownership should be laid in the master. Aldridge v. State, 88 Ala. 113, 7 So. 48, 16 Am.St.Rep. 23; 6 Cyc. 211 (IV, D, 11, c [iii]). The reason of the rule is to show that the accused is not the rightful occupant, and therefore had no right to break and enter, and to so identify the offense on the record as to protect the accused from a second prosecution for the same offense. State v. Trapp, 17 S.C. 467, 470, 43 Am.Rep. 614.

"Notwithstanding the complaints that have been made against the strictness required in criminal proceedings, as tending to facilitate the escape of offenders, all must agree that to a certain extent it is indispensable; nor will it be denied that it is necessary to the purposes of justice that the party accused should be apprised of the nature and identity of the offense for which he is called to answer. He ought to be protected from subsequent prosecutions for the same offense, and the court ought to be enabled to judge from the record what the offense is." State v. O'Donald, 1 McCord (S.C.) 532, 10 Am.Dec. 691; Miles v. State, 94 Ala. 106, 11 So. 403; Mazett v. State, supra.

For all that appears in the third count of the indictment, the accused may have been the actual, if not the legal, custodian of the building described as the "Alabama State Capitol," or the apartment or room broken into and entered may have been in the actual custody of the accused.

To illustrate, the evidence in the record shows that Dr. Sanders is state health officer, occupying an apartment as an official of the health department in the State Capitol building. Suppose he had broken and entered his own office with the purpose and intent of surreptitiously abstracting therefrom the papers that the accused, Adams, is alleged to have taken and for like purpose as the accused is alleged to have taken them; could it be contended for an instant that Dr. Sanders would be guilty of burglary under such circumstances? We think not. This clearly demonstrates that the third count of the indictment was bad, and the demurrers thereto should have been sustained.

It cannot be doubted that each room or apartment of the State Capitol building may be a "building" within the meaning of the statute, and the subject of burglary, but the ownership of the property in such a prosecution should be laid in the actual occupant. Thomas v. State, supra; 6 Cyc. 212 (IV, D, 11, c [iv]).

From these observations it is clear that, where the form laid down for indictments for burglary is not followed, the conclusion should necessarily arise from the facts stated that the accused was not the actual occupant of the building broken or entered, or there should be a positive negation of his right to break and enter the building.

The most serious question in the case is that presented by the refusal of the court to give the affirmative charge requested by the defendant. The undisputed proof shows that the building entered was the office of Dr. W.H. Sanders, state health officer, and chairman of the state board of medical examiners; that the witness Avery was an applicant before the board for license to practice...