Burrow v. State
Decision Date | 30 June 1906 |
Citation | 41 So. 987,147 Ala. 114 |
Parties | BURROW v. STATE. |
Court | Alabama Supreme Court |
Appeal from Cleburne County Court; T. A. Johnson, Judge.
"To be officially reported."
Christopher Burrow was convicted of burglary, and he appeals. Affirmed.
Burton & McMahan, for appellant.
Massey Wilson, Atty. Gen., for the State.
The indictment as returned by the grand jury contained three counts. On motion of the defendant the third count was stricken. The first count charges burglary of a railroad car the property of the Southern Railway Company, a corporation under the law of the state of Virginia, and in all essential particulars the count is sufficient. Code 1896, § 4418. No plea denying the existence of the corporation was filed. Hence there was no necessity for proving the incorporation as alleged. Acts of 1900-01, p. 2285. The second count attempts to charge grand larceny. The ownership of the property is laid in the Southern Railway Company, but there is no averment in this count that it is a corporation, a partnership, or a natural person. On the reasoning employed in the case of Emmonds v. State, 87 Ala. 12, 6 So 54, and on the authority of that case, it must be held that the count is insufficient with respect of the allegation of ownership of the property alleged to have been stolen. But this will not work a reversal of the judgment; for, while the verdict of the jury finds the defendant guilty on the first and second counts, and the judgment of the conviction follows the verdict, yet the record affirmatively shows that the defendant was sentenced only for the offense of burglary. We are therefore able to say that we are satisfied that no injury resulted to the defendant on account of this defective count and the finding of the jury on it. Code 1896, § 4333.
The evidence showed without conflict that, while the car burglarized was "an Illinois Central Railroad car," it was in use by the Southern Railway Company for the transportation of freight. The goods that were in the car at the time had been brought in the car by the Southern Railway Company over its line to Heflin, the point where the burglary was committed, and the car was in that company's undisputed possession, on its tracks at the time. Under these facts the ownership was properly laid in the Southern Railway Company. Matthews' Case, 55 Ala. 65, 28 Am. Rep. 698; Allen's Case, 134 Ala. 159, 32 So. 318. The case of Johnson v....
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