Hannigan v. State

• Decision Date: 19 December 1901
• Citation: 31 So. 89,131 Ala. 29
• Parties: HANNIGAN v. STATE.
• Court: Alabama Supreme Court

31 So. 89

131 Ala. 29

HANNIGAN v. STATE.

Supreme Court of Alabama

December 19, 1901

Appeal from Tuscaloosa county court; J. J. Mayfield, Judge.

Dan Hannigan was convicted of arson, and appeals. Affirmed.

Daniel Collier, for appellant.

Chas G. Brown, Atty. Gen., for the State.

TYSON J.

The defendant was indicted for the offense of arson in the second degree. The indictment laid the ownership of the store charged to have been willfully set fire to and burned by defendant in the Alabama Consolidated Coal & Iron Company, a corporation. The evidence tended to show that the house set fire to was the property of that corporation, and was used by it as a general merchandise storehouse, and that it contained at the time property worth more than $500. There was no other evidence of ownership. The following charge in writing was refused to defendant, to wit: "The court charges the jury that, if the state failed to prove by evidence of title ownership of the property fired as charged in the indictment the jury cannot find the defendant guilty." This charge is a copy of the one which the court held in Boles v State, 46 Ala. 207, was good, and should have been given. The reason assigned was: "The form of the indictment requires this allegation. These are the forms prescribed by law. What they contain is required to be alleged; and what is required to be alleged must be proven." It is true, ownership must be alleged. "But at common law and under the statutes the offense is against the possession, rather than the property. * * * The possession, not the tenure or interest in the property, must be described. * * * Therefore, at common law, the offense reaching only the dwelling house, the indictment must not have averred it was the house of him in whom the fee resided if in fact another had the actual occupancy, even though the occupancy was wrongful." Adams v. State, 62 Ala. 177; Heard v. State, 81 Ala. 55, 1 So. 640; May v. State, 85 Ala. 14, 5 So. 14. In Davis v State, 52 Ala. 357, the indictment was in the Code form, as here, and the ownership of the house was laid in Jennie Pharr, a servant of the owner of it, who was occupying it as her dwelling when the offense was committed. The court said: "In the case of People v. Van Blarcum, 2 Johns. 105, it is held, if one be indicted for burning the dwelling house of another, it is sufficient if it be in fact the dwelling house of such person. The court will not inquire into the tenure or interest which such person has in the house burned. It is enough that it was his actual dwelling at the time. In 1 Bish. Cr. Proc. § 573, the rule is stated to be that the house must be laid to be the dwelling house of the real occupier." For aught...