McQueen v. State
| Decision Date | 21 May 1914 |
| Docket Number | 107 |
| Citation | 65 So. 310,10 Ala.App. 244 |
| Parties | McQUEEN v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Autauga County; W.W. Pearson, Judge.
George McQueen was convicted of trespass to realty, and he appeals. Reversed and remanded.
Omitting formal parts, the indictment is as follows:
The demurrer to each count of the indictment was as follows:
It does not aver a severance from the freehold previous to the taking. It does not aver that the property taken was personal property. It charges no offense known to the law. It fails to definitely describe the property alleged to have been stolen. It fails to allege removal of the property. It fails to charge that the alleged severance and carrying away was willful. It fails to allege that the severance and carrying away was felonious. It fails to aver the value of the property to the owner before being detached from the freehold.
Eugene Ballard and P.E. Alexander, both of Prattville, for appellant.
R.C Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.
The indictment and demurrers thereto will be set out in the report of the case. The court sustained the demurrers as to the first count, and overruled them as to the second, its action in doing which is the only question presented for review.
The act (see Gen.Acts 1911, p. 625) section 7833 of the Code, and creating the offense sought to be charged, thus provides:
"Any person who willfully commits any trespass on the lands of another, *** by severing and carrying away from the freehold any produce thereof or any property or thing thereto attached the value of which was less than $5.00 to the owner before being detached from such freehold, under such circumstances as would render the trespass a larceny if the thing severed and carried away were personal property, must, on conviction, be fined not more than $200.00," etc.
Paraphrasing the second count of the indictment, it charges that the defendant "did sever and carry away from the freehold of Vernon Lamar produce thereof, consisting of four bushels of peaches, of the value of $4, under such circumstances as would render the trespass a larceny if the thing [peaches] so severed and carried away had been personal property."
While the language of the indictment would have been more apt if it had charged in the verbiage of the statute that the defendant "did willfully commit a trespass upon the lands of Vernon Lamar by severing and carrying away produce thereof, consisting of four bushels of peaches," etc., yet, in charging a statutory offense, it is not necessary to pursue the literal...
To continue reading
Request your trial
-
Sheffield v. State
...or trees in one continuous act was but a mere trespass, not larceny, as distinguished from a taking of severed crops, McQueen v. State, 10 Ala.App. 244, 65 So. 310 (1914) (applied Alabama Code of 1907), a result since changed by a succession of legislative changes (incorporated in former § ......
-
Parker v. State
...property; in other words, the severance of the wires and their removal was one continuous act and not separate acts. McQueen v. State, 10 Ala.App. 244, 65 So. 310; Fuller v. State, 34 Ala.App. 211, 39 So.2d Chief Justice Stone, in Langston, supra, enumerates certain basic principles of law ......
- Conner v. State
-
O'Neal v. State
... ... were a growing crop, and were growing in the soil [166 Miss ... 540] at the time of the asportation. They were a part of the ... realty and not the subject of larceny. They were not personal ... property, but real property ... McQueen ... v. State, 65 So. 310 ... Taken ... as a whole, the proof showed that the defendant could not be ... guilty of larceny, but of trespass, if guilty at all ... W. D ... Conn, Jr., Assistant Attorney-General, for the state ... It has ... been held that the ... ...