Ashmon v. State

Citation9 Ala.App. 29,63 So. 754
PartiesASHMON v. STATE.
Decision Date27 November 1913
CourtAlabama Court of Appeals

Appeal from Circuit Court, Barbour County; M. Sollie, Judge.

Jim Ashmon was convicted of burglary, and he appeals. Reversed and remanded.

C.S McDowell, Jr., of Eufaula, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

The indictment in this case alleges (omitting the formal and stating parts) that the defendant, "with intent to steal, broke into and entered the dwelling house, or a building within the curtilage of the dwelling house, or shop store, warehouse, or other building of J.C. McRae in which goods, merchandise, or clothing, things of value, were kept for use or deposit." While the indictment is practically in the form prescribed for burglary (Criminal Code, p. 664, form 27), it is not as broad as the statute defining what shall constitute the offense (Code, § 6415), in that in the second clause of the section of the Code defining the offense "other valuable thing" is used disjunctively as related to the specified things kept for use, sale, or deposit; the word "or" immediately preceding "other valuable thing" in the statute, while in the form prescribed for an indictment the enumerated things "goods, merchandise or clothing" are immediately followed by the words "things of value," with only a comma between, and not separated by the disjunctive "or," as in the statute defining the offense. The use of the words "things of value" in the connection in which they appear in form 27, and in the present indictment, makes it, the form, and indictment in this case, more restricted and narrow in meaning, and it does not comprehend or cover the entire offense as prescribed by the statute, wherein it uses the words "or other valuable thing" in the connection in which those words are used in the statute defining the offense of burglary. As used in the connection in which they appear in the form, the words, "things of value" have been construed by our Supreme Court to have reference to and to be descriptive of that designated thing immediately preceding these words (in this case "clothing"). McCormick v. State, 141 Ala. 75, 79, 37 So. 377.

On the trial the proof showed that a store of one J.C. McRae was burglarized and 20 silver quarter dollars taken therefrom on a certain night; but it was not shown that it was a store in which goods, merchandise, or clothing was kept, as alleged in the indictment. Except as to the 20 silver quarters stolen it was not shown by the evidence set out in the bill of exceptions that anything was kept in the store, and it was not alleged in the indictment that silver money, the only thing shown to have been taken, was kept in the store. Under this state of the proof on an indictment containing the averments we have set out and discussed above, the contention of appellant's counsel that it was error for the court to refuse...

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10 cases
  • Bills v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 3, 1973
    ...to the jury as to whether or not it was the same carpet which was stolen. Smith v. State, supra; Carter v. State, supra; Ashman v. State, 9 Ala.App. 29, 63 So. 754; and Allen v. State, 8 Ala.App. 228, 62 So. Appellant next contends that the trial court erred in denying his motion to exclude......
  • Lowe v. State
    • United States
    • Alabama Court of Appeals
    • June 26, 1945
    ...and many articles of merchandise were observed missing. Clearly, the corpus delicti was established by this proof. Ashmon v. State, 9 Ala.App. 29, 63 So. 754; Vaughn v. State, 24 Ala.App. 604, 139 So. When the State had concluded its evidence in chief, appellant moved for an exclusion of th......
  • Adams v. State
    • United States
    • Alabama Court of Appeals
    • June 8, 1915
    ...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. first count of the indictment in this case does not follow the form, but charges that the defendant, "with intent to steal,......
  • Miller v. State, 4 Div. 517
    • United States
    • Alabama Court of Appeals
    • March 15, 1966
    ...qualification of keeping therein for use, sale or deposit of chattels or 'things.' Crawford v. State, 44 Ala. 382. See also Ashmon v. State, 9 Ala.App. 29, 63 So. 754; Diggs v. State, 20 Ala.App. 213, 101 So. Mr. Justice Harwood, while on this court, illustrated his opinion in Evans v. Stat......
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