May v. State
| Decision Date | 26 July 1888 |
| Parties | MAY v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Conecuh county; JOHN P. HUBBARD, Judge.
The indictment in this case was found in April, 1888, and contained two counts: the first charging that the defendant Anderson May, "willfully set fire to and burned a corn-pen containing corn, the property of Flora Davidson;" and the second, that "under such circumstances as did not constitute arson in the first or second degree, he did willfully set fire to or burn a corn-pen containing corn, the property of Flora Davidson." There was no demurrer to the indictment, and the cause was tried on issue joined on the plea of not guilty. The jury returned a verdict in these words: "We the jury, find the defendant guilty." The defendant thereupon moved in arrest of judgment (1) "because the jury did not assess the fine or punishment on the defendant;" (2) "because the indictment contains two counts, one charging a felony, and one a misdemeanor, and the verdict does not specify the offense of which the defendant is found guilty." The court overruled the motion, and sentenced the defendant to imprisonment in the penitentiary for the term of two years and six months, and defendant appealed.
Bowles & Rabb, for appellant.
T. N. McClellan, Atty. Gen., for the State.
The defendant is indicted for having willfully set fire to and burned a corn-pen containing corn. In the indictment, the ownership is laid in Flora Davidson, who is a married woman. The land on which the pen is located was entered by her husband, who is, and has been for some time, employed at work in Florida, coming home occasionally. The wife occupied and cultivated the premises, made and gathered the corn, and had the pen built, during his absence. Arson is rather an offense against the possession than the property; and the possession, not the estate or interest in the property, must be described. Adams v. State, 62 Ala. 177. Flora Davidson having the actual and rightful possession of the pen, and the premises on which it was situate, and the corn, which was her earnings, being under the statute her separate property, ownership in her was properly laid in the indictment.
The statute, defining arson in the third degree, does not prescribe in express terms its constituents, but merely designates the offense. Code 1886, § 3784. In such case it is not sufficient to follow the words of the...
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