Anderson v. State, 1 Div. 156
| Citation | 389 So.2d 180 |
| Decision Date | 07 October 1980 |
| Docket Number | 1 Div. 156 |
| Parties | Darrell Ray ANDERSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
M. A. Marsal, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
The defendant was indicted and convicted for second degree burglary. Sentence was five years' imprisonment. The defendant is represented by retained counsel both at trial and on appeal.
The defendant argues that his motion to dismiss the indictment should have been granted because the indictment is unclear as to whether it includes one or two counts.
Omitting its formal parts, the indictment charges that the defendant:
"Did, with intent to steal, break into and enter an uninhabited dwelling house, to-wit, a large wooden frame house, located in the New Hope, Alabama, community, in the possession of Donald R. Burkette, which is specially constructed or made to keep goods, wares or merchandise, two (2) 'Remington' brand 12-guage Model 1100 shotguns, one bearing Serial Number M-875971V, and the other bearing Serial Number 44497V, and one having a 26-inch improved cylinder barrel and the other having a 28-inch barrel, better descriptions of which are unknown to the Grand Jury, in which goods, wares or merchandise, two (2) 'Remington' brand 12-guage Model 1100 shotguns, one bearing Serial Number M-875971V, and the other bearing Serial Number 44497V, and one having a 26-inch improved cylinder barrel and the other having a 28-inch barrel, better descriptions of which are unknown to the Grand Jury, were kept for use, sale or deposit."
Burglary in the second degree is defined by Alabama Code Section 13-2-41 (1975). The form of an indictment for this offense is found in Alabama Code Section 15-8-150(28).
"A. B. did, in the daytime, with intent to steal (or to commit arson in first degree, or other designated felony, as the case may be, or in the alternative), break into and enter an inhabited dwelling house (or other house or building within the statute, describing it, and giving the name of the owner or person in possession), which was occupied by C. D., a person lodged therein or A. B. did with intent to steal (or to commit arson in the first degree, or other designated felony, as the case may be, or in the alternative), break into and enter an uninhabited dwelling house, or a building, structure or other enclosure (describing it and giving the name of the owner or person in possession) within the curtilage of a dwelling house, though not forming any part thereof, or a shop, store, warehouse (or other building, structure, or enclosure within the statute, describing it, giving the name of the owner or person in possession) which is specially constructed or made to keep goods, wares, merchandise or other valuable thing (describing the article) in which goods, wares, merchandise or other valuable thing (describing it) was kept for use, sale or deposit (as the case may be or in the alternative), against, etc."
By omitting portions of this form, it becomes readily apparent that the indictment was a cumbersome attempt to follow the language of the form.
This indictment represents the familiar principle of unnecessary particularity of averment. While the indictment tends to be confusing for this very reason, it is clear that the subject of the burglary was an "uninhabited dwelling house, to-wit, a large wooden frame house, located in the New Hope, Alabama, community, in the possession of Donald R. Burkette" in which two shotguns of a given description were kept.
In Porter v. State, 17 Ala.App. 550, 86 So. 143 (1920), we find the following:
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