Driver v. State

• Decision Date: 23 June 1921
• Docket Number: 5 Div. 800
• Citation: 89 So. 504,206 Ala. 195
• Parties: DRIVER et al. v. STATE.
• Court: Alabama Supreme Court

89 So. 504

206 Ala. 195

DRIVER et al. v. STATE.

5 Div. 800

Supreme Court of Alabama

June 23, 1921

Certiorari to Court of Appeals.

Petition of Luther Driver and Enoch Mims for certiorari to the Court of Appeals, to review and revise the judgment of said court rendered on the appeal of Luther Driver and Enoch Mims against the State. Writ awarded, and cause reversed and remanded.

Hill Hill, Whiting & Thomas, of Montgomery, and Grady Reynolds, of Clanton, for appellants.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

ANDERSON C.J.

Section 7324 of the Code of 1907, in defining grand larceny among other things, says, "or from or in any dwelling house." The form of indictment, No. 64, is, "A.B feloniously took and carried away from a dwelling house and," etc. The Court of Appeals finds, and so states that the cotton was taken, not from within the house, but from the porch or gallery of same. So the question is: Was taking the cotton therefrom grand larceny, irrespective of the value of same, within the contemplation of section 7324 of the Code of 1907?

In the case of Henry v. State, 39 Ala. 679, this court, in construing section 3170 of the Code of 1852, which reads as follows "Any person who commits larceny in any dwelling house and," etc.--held that taking clothes from the banisters of a piazza was not grand larceny within the terms of the statute. "Dwelling house," as used in this connection, was there defined, and the purpose of same as well as the property it was intended to protect was discussed. The case of Point v. State, 37 Ala. 148, was also cited approvingly, wherein it was held that a piazza, though a part of the dwelling house for certain purposes, was not deemed the dwelling house within the statute under consideration and that the taking must be such as would amount to burglary had the entry been with force. In said Point Case it was said:

"The sanctity which the place throws over property which is under its protection, magnifies the offense, and constitutes it a felony, irrespective of the value of the property stolen."

The words "dwelling house" as thus used have received a well-known meaning, and excludes an open porch or piazza attached thereto, and used as an entrance into the house, and we do not think that taking the cotton from the porch in question was grand larceny under the statute, regardless of the value of same. True, the...