Lucas v. State

• Decision Date: 30 June 1905
• Citation: 144 Ala. 63,39 So. 821
• Parties: LUCAS v. STATE.
• Court: Alabama Supreme Court

39 So. 821

144 Ala. 63

LUCAS v. STATE.

Supreme Court of Alabama

June 30, 1905

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

"To be officially reported."

Charles Lucas was convicted of crime, and appeals. Affirmed.

Rehearing denied January 9, 1906.

L. A Sanderson, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

The defendant was at the February term, 1905, of Montgomery city court, jointly indicted with one Will McCoo in five indictments, and was tried separately from his codefendant. All of the indictments are set out in the record, and are numbered 2,596, 2,597, 2,598, 2,599, and 2,600, respectively. Nos. 2,597 and 2,598 each charge grand larceny and conform to the form laid down in the Code. Form 52. Nos. 2,596, 2,599 and 2,600 charge burglary of a chicken or hen house. These indictments for burglary are attacked upon the ground that they do not allege that the chicken house was specially made to keep such goods, merchandise, or other valuable things. A chicken or hen house is a building which is of a permanent and substantial kind, and is well known in communities where poultry is raised as the building in which chickens and other poultry are housed. It was not, therefore, necessary it should be described in the indictment as specially constructed or made for the use to which it was put. "The structures that must be thus described are those of a temporary character, erected for special purposes, or occasions." The two indictments for burglary are sufficient. Code 1896, § 4417; Stone's Case, 63 Ala. 115; Smith's Case, 140 Ala. 146, 37 So. 157.

The minute entry, after the formal statement of case No. 2,596 against the defendant, recites that "by consent and at the instance and request of the defendant this cause submitted to the same jury and at the same time along with said causes numbered 2,597, 2,598, 2,599, and 2,600." The verdict of the jury was in the following language namely: "We, the jury, find the defendant Charles Lucas alias Charles Brooks, guilty as charged." Upon the verdict the defendant was adjudged guilty as charged in the indictment, and was formally sentenced to imprisonment in the penitentiary for a term of three years. At a subsequent day of the term of the court at which the conviction was had the defendant moved in arrest of judgment. One of the grounds of the motion was that the defendant was put to trial on five separate indictments at the same time and before the same jury, and that two of the indictments, Nos. 2,597 and 2,598, charged grand larceny of different goods from different parties and from different places, and that the other three, Nos. 2,596, 2,599, and 2,600, charged burglary from different places.

At the common law "two or more offenses, committed by the same person, may be included in the same indictment in different counts, where they are of the same general nature, and belong to the same family of crimes, and when the mode of trial and nature of the punishment are also the same, although they may be punishable with different degrees of severity." Johnson's Case, 29 Ala. 62, 65 Am. Dec. 383; Mayo's Case, 30 Ala. 32; Cawley's Case, 37 Ala. 152; Oliver Case, Id., 134; Tanner's Case, 92 Ala. 1, 9 So. 613; Miller's Case, 45 Ala. 24; Horton's Case, 53 Ala 488; Hornsby's Case, 94 Ala. 55, 10 So. 522; Lowe's Case, 134 Ala. 154, 32 So. 273; 1 Bishop's Criminal Procedure, 424, 426, 449. Section 4913 of the Code of 1896 provides: "When offenses are of the same character and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative." Rose's Case, 117 Ala. 77, 23 So. 638; Burdine's Case, 25 Ala. 60; Miller's Case, 45 Ala. 24; Hornsby's Case, 94 Ala. 55, 10 So. 522. It has been expressly held that burglary and grand larceny may be joined in the same indictment. Gordon's Case, 71 Ala. 315; Rose's Case, 117 Ala. 77, 23 So. 638; Broughton's Case, 105 Ala. 103, 16 So. 912. When offenses are so charged, the court will not, in advance of the introduction of the evidence, compel an election; nor will it do so after the introduction of the evidence, unless it is made to appear that an attempt is made to convict the defendant of two or more offenses growing out of separate and distinct transactions. Mayo's Case, 30 Ala. 32; Butler's Case, 91 Ala. 87, 9 So. 191; Tanner's Case, 92 Ala. 1, 9 So. 613. If two or more felonies of a kindred nature may be charged in different counts...