Bailey v. State

• Decision Date: 15 June 1893
• Citation: 13 So. 566,99 Ala. 143
• Parties: BAILEY v. STATE.
• Court: Alabama Supreme Court

13 So. 566

99 Ala. 143

BAILEY v. STATE.

Supreme Court of Alabama

June 15, 1893

Appeal from city of Gadsden; John H. Disque, Judge.

Sam Bailey was convicted of larceny, and appeals.Affirmed.

On hearing all the evidence, the court, at the request of the solicitor, gave the general affirmative charge in behalf of the state, to the giving of which defendant duly excepted.

W. H Standifur, for appellant.

Wm. L Martin, Atty. Gen., for the State.

STONE C.J.

The defendant was indicted for larceny from a storehouse, under section 3789 of the Code of 1886.The indictment pursues the form No. 51, example 3, of that Code, and is in the following language: "The grand jury charges that before the finding of this indictment Sam Bailey, whose true Christian name is to the grand jury unknown otherwise than as stated, feloniously took and carried away from a storehouse one shirt, of the value of seventy-five cents, the personal property of Max Long against the peace," etc.The testimony tends to prove and does prove that the defendant feloniously stole the property described "in" a storehouse; but before he escaped from the house he was detected, the goods taken from him, and he was arrested.The only question presented by this record is whether the proof corresponds with the allegations of the indictment, and justifies a conviction.This statutory crime is found in the Code of 1852, (section 3170.)Its language, as then expressed, was that "any person who commits the crime of larceny in any *** storehouse *** on conviction must be imprisoned in the penitentiary," etc.That statutory description of the offense was retained in the Code of 1867, (section 3707,) and in the Code of 1876(section 4359,) without change, except as to the manner of punishment.In each of the Codes a form of indictment for this offense was furnished, which had never been changed.See Code of 1852, form 45; Code of 1867, form 42; Code of 1876, form 39.This offense was made grand larceny by statute.During all these years the indictments framed for this offense have pursued the language of said form, and charged the larceny to have been committed from the storehouse, etc.Many convictions have been had under indictments thus framed, and have received the sanction of this court.In the Criminal Code of 1886(section 3789) the language of the statute was changed.It was there enacted that "any person, who steals *** any personal property of any value *** from or in any storehouse, *** is guilty of grand larceny, and on conviction," etc.The form, as originally framed and stated above, was retained in this Code without change.Form 51, example 3.It will be observed that in that form it was charged that the offense consisted in stealing "from" a storehouse, and not "in" a storehouse.One of the first cases that arose under this statute was Point v. State,37 Ala. 148, in which the defendant was convicted of a felony.On review before this court the question of variance between the allegations of the indictment and the proof was neither raised nor considered.The judgment of conviction was affirmed.We have made very many rulings on the sufficiency of the forms of indictments furnished in the several Codes."When the legislature, either in the body of the statute or in a prescribed form, declares what shall be a sufficient indictment, such legislative direction is pronounced controlling, and an indictment pursuing such form will be...