Ex parte Allen

• Decision Date: 10 April 1941
• Docket Number: 7 Div. 655.
• Citation: 241 Ala. 137,2 So.2d 321
• Parties: Ex parte ALLEN. ALLEN v. STATE.
• Court: Alabama Supreme Court

2 So.2d 321

241 Ala. 137

Ex parte ALLEN.

ALLEN v. STATE.

7 Div. 655.

Supreme Court of Alabama

April 10, 1941

The indictment treated by the Court of Appeals is as follows: "The grand jury of said county charges that before the finding of this indictment Bill Allen, whose true name is otherwise known, wilfully, and without the consent of the owner entered upon the land or property of Charlie Mitchell, and carried away therefrom 24 windows complete and six doors of the value of $36.00, the personal property of Charlie Mitchell, contrary to law and against the peace and dignity of the State of Alabama."

Motley & Motley, of Gadsden, for petitioner.

Thos S. Lawson, Atty. Gen., and Prime F. Osborn, III, Asst. Atty Gen., opposed.

FOSTER Justice.

We agree with the Court of Appeals that the absence from the indictment of the word "knowingly," in connection with the word willfully is not such a fatal defect as that it will not sustain a conviction, there having been no demurrer to it on that ground. True, there may be a willful act without knowingly doing a wrong. But there may be an inference that it was "knowingly" done from the fact that it was willful. Peebles v. O'Gara Coal Co., 239 Ill. 370, 88 N.E. 166. Sometimes and for some purposes the words are said to convey the same idea. Schultz v. Henry Ericsson Co., 264 Ill. 156, 106 N.E. 236.

That is the only defect specifically treated by the Court of Appeals but that court did hold that the indictment was sufficient to sustain a conviction under section 4905, Code; Code 1940, Tit. 14, § 331, and appellant has undertaken to point out other defects to show that no crime is charged in the indictment.

The particular feature of section 4905, Code, which alone can support the indictment is the last offense designated in it. To constitute such an offense, a felonious taking and carrying away is not necessary, but only a particular kind of trespass. The guilty person must knowingly, willfully and without the consent of the owner, enter into a dwelling house (or other described structure) and cut, break, tear away or remove (certain described articles which would include windows and doors charged in this indictment) attached to and a part of such building, the value of which is $5 or more, with the intent to convert it to his own use.

This trespass was made grand larceny by the Act of March 7, 1911, General Acts 1911, page 92, and carried into the Code of 1923. Prior to the Act of 1911, supra, there was a different sort of trespass, also without a felonious intent, made larceny, and it still is so. But that was entirely different from that which was added by the Act of 1911. By it (see the Code of 1907, section 7324) one was also guilty of grand larceny if he knowingly, willfully and without the consent of the owner, enters upon the land of another and cuts and carries off timber or rails of the value of $25 with the intent to convert the same to his own use. To this feature of the Act, supra, the Code of 1923 added certain outstanding crops.

So that the Code of 1923 contains two separate trespasses not felonious, and makes them grand larceny. One of them covers an entrance on land, where he cuts timber, or certain crops and carries them off, also rails, and it must be of the value of $25. The other is an entrance into a dwelling house or other defined building, and takes off of the house some certain...