Evans v. State

• Decision Date: 19 July 1949
• Docket Number: 8 Div. 742.
• Citation: 41 So.2d 615,34 Ala.App. 534
• Parties: EVANS v. STATE.
• Court: Alabama Court of Appeals

41 So.2d 615

34 Ala.App. 534

EVANS v. STATE.

8 Div. 742.

Alabama Court of Appeals

July 19, 1949

Griffin, Ford, Caldwell & Ford, of Huntsville, for appellant.

A A. Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty Gen., for the State.

HARWOOD Judge.

The indictment against this appellant, omitting the formal parts contained two counts, as follows:

'Count One: Hobert Evans and Pete Shavers, alias Pete Stevens, whose names are to the Grand Jury otherwise unknown, with intent to steal broke into and entered an uninhabited dwelling house owned by Willie Pope.

'Count Two: The Grand Jury of said Madison County further charges that before the finding of this indictment Hobert Evans and Pete Shavers, alias Pete Stevens, whose names are to the Grand Jury otherwise unknown, with intent to steal broke into and entered an uninhabited dwelling house owned by Willie Pope and in possession of said Willie Pope, where goods wares, merchandise were kept for use, sale or deposit, against the peace and dignity of the State of Alabama.'

A demurrer, containing numerous grounds, was filed to the indictment. In their final analysis these grounds set up that both counts are defective in that neither count properly charges burglary in the second degree, nor does either count negative appellant's right to enter the house allegedly burglarized under some possible special legal interest that might be held by appellant.

The portions of Section 86, Title 14, Code of Alabama 1940, defining burglary in the second degree, which are pertinent to this case are as follows: '* * * or any person who either in the nighttime or daytime, with intent to steal or to commit a felony, breaks into and enters any uninhabited dwelling house, or any building, structure or enclosure, within the curtilage of any dwelling house, though not forming any part thereof * * * in which any goods, wares, merchandise or other valuable thing is kept for use, sale, or deposit * * *, is guilty of burglary in the second degree * * *.'

Count one does not allege that the uninhabited dwelling house was one in which there were kept for use, sale, or deposit, goods, wares or merchandise. Otherwise it substantially follows the Code form of the indictment prescribed in this type of case, and so far as we can see, the material portions of the Section 86 denouncing the offense of burglary from an uninhabited dwelling house.

An indictment for burglary of a dwelling house need not allege that goods, wares, merchandise, or other valuable things were kept therein for use, etc., such words or phrases applying only to the buildings, structures, etc. named in the second clause of Section 86, supra. Porter v. State, 17 Ala.App. 550, 86 So. 143.

The reason for such rule is obvious. The very term dwelling house denotes that it was occupied, and used by some person as a home, though it may be inferred from the adjective 'uninhabited' that the person living therein was temporarily absent at the time of the burglary. It follows naturally that a dwelling house must normally contain goods, etc. to facilitate its use as such. On the other hand, a building, structure, etc., unless shown by an averment to that effect may reasonably be presumed to be empty, thereby affording no reasonable or satisfactory basis on which to found any larcenous or other felonious intent by reason of entry thereinto.

Count two very clearly follows the prescribed Code form of indictment for burglary in the second degree, as well as the language of the Code section pertaining thereto. Parrish v. State, 30 Ala.App. 442, 7 So.2d 893; Adams v. State, 13 Ala.App. 330, 69 So. 357.

Count one describes the dwelling house entered as 'owned by Willie Pope,' and count two describes the house as 'owned by Willie Pope and in possession of said Willie Pope.'

Burglary in the second degree, like trespass is an offense against possession, and hence the test for determining in whom ownership of the burglarized premises should be laid in an indictment for this offense is not ownership in the sense of legal title, but ownership in the sense of right of occupancy or possession. The ownership in such indictments is therefore properly laid in the occupant at the time the offense was committed, unless the occupant is a mere servant. Adams v. State, 13 Ala.App. 330, 69 So. 357. Precise accuracy in alleging the ownership of the house, not being an element of the crime of burglary in the second degree, is not required, and reference to ownership is only to increase the accuracy of the identity of the building allegedly burglarized. The designations of the house as they appear in the two counts of this indictment are in our opinion sufficient, and negatived the existence of any special interest in appellant entitling him to lawfully enter therein. The indictment was sufficient in this respect. Anderson v. State, 48 Ala. 665, 17 Am.Rep. 36; Murray v. State, 48 Ala. 675.

Nor do we consider count two defective because it omitted to describe the goods, wares, and merchandise mentioned therein as things of value. The words 'goods, wares, and merchandise' in and of themselves import value. Danner v. State, 54 Ala. 127, 25 Am.Rep. 662.

The verdict of the jury was a general verdict of guilty, and therefore referable to either count. It is our opinion however that the demurrer was properly overruled as to each count.

The evidence presented by the State tends to show that on a day in December, 1946, Willie Pope accompanied by his wife, and after locking the doors and closing the windows, left the house he had occupied for about 15 years and was absent therefrom from 'dusky dark' to around 10 p. m. The house was in a rural section of Madison County, on land owned by Nolen Drake, Pope occupying the house as a tenant of Drake.

The next morning Pope asked his wife to bring him his shotgun. The gun could not be found in the place it was kept, 'right up over the door.' Pope then examined his house and found a door to the west room, which had been fastened with an iron latch on the inside was 'broke open,' the latch being knocked off. Further investigating by Pope revealed that in addition to his shotgun a pair of his slippers was missing as well as his hound dog which he had tied on the outside of his house before leaving the night before.

A day or so later the appellant was arrested while riding in a convertible coupe in Jackson County. Some three or four days prior to his arrest appellant had...