Milam v. State

• Citation: 29 Ala.App. 494,198 So. 860
• Decision Date: 29 June 1940
• Docket Number: 7 Div. 561.
• Parties: MILAM v. STATE.
• Court: Alabama Court of Appeals

198 So. 860

29 Ala.App. 494

MILAM v. STATE.

7 Div. 561.

Court of Appeals of Alabama

June 29, 1940

Rehearing Denied Aug. 6, 1940.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Certiorari denied by Supreme Court in Milam v. State, 198 So 863.

H. L alias, Herman, Milam was convicted of grand larceny and buying, receiving or concealing stolen property, and he appeals.

Reversed and remanded.

Pruet &amp Glass, of Ashland, for appellant.

Thos. S. Lawson, Atty. Gen., and Prime F. Osborn, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

In the first count of the indictment, this appellant, defendant below, was charged with the specific offense of grand larceny, in that, he "feloniously took and carried away one No. 64 1/2 Marcy-Ball Mill of the value of $1,500, the personal property of Martin Jenkins Norrell." The second count charged that he did buy, receive, conceal or aid in concealing the same and identical property, knowing that it was stolen, or having reasonable grounds for believing that it had been stolen, and not having the intent to restore it to the owner, etc.

Here, as stated, the indictment charged the defendant with the larceny of one No. 64 1/2 Marcy-Ball Mill of the value of fifteen hundred dollars, said charge being a particular and precise averment, the State was under the burden, as in all criminal cases, to establish the corpus delicti by competent and sufficient proof. That is to say, in this case, necessary to a conviction, the State was under the burden and was required to offer sufficient legal testimony to show that the defendant did feloniously take and carry away the identical personal property as alleged in the indictment, the rock mill in question.

The evidence in the case tended to show that the property alleged to have been stolen weighed about 20,000 pounds; that it was, and still is, situated in Clay County, at or near a dilapidated and abandoned graphite plant. There was also evidence that some person or persons wantonly or maliciously destroyed, or at least injured, said mill, and it being a commodity of value, such person or persons who committed the act could have been held to answer therefor under the provisions of Section 3212 of the Code 1923. Further, if said person or persons, after such injury to said mill, feloniously took and carried away any part of scrap iron, etc., such person or persons could have been held to answer a charge either of grand or petit larceny according to the value of the property involved.

Under the evidence before the grand jury of the county, said grand jury returned the indictment, supra. The State having thus elected to prosecute, the person accused in said indictment was called upon to defend only the specific charge therein contained. Allegation and proof of offense must correspond, and a material variance in the allegations and proof is fatal to a conviction. In other words, the State must prove the charge laid in the indictment, failing so to do, the defendant would be entitled to an acquittal.

In this case no such proof was had. Proof of depredations upon and injury to the property, as stated above, will not suffice.

In line with the foregoing the trial judge gave at the request of defendant, charges 13 and 15, which read as follows:

"13. I charge you, gentlemen of the jury, that before you can convict the defendant of the matter set forth in count one of the indictment you must believe from the evidence beyond a reasonable doubt that the defendant feloniously stole the property set forth in count one of the indictment.

"Given, R. B. Carr, Judge."

"15. I charge you, gentlemen of the jury, that before you can convict the defendant of the matters set forth in count two of the indictment you must believe from this evidence beyond a reasonable doubt that the defendant did buy, receive, conceal, or aid in concealing the property set forth in count two of the indictment.

"Given, R. B. Carr, Judge."

The court was correct in giving at the request of the defendant, the two above quoted charges, as each of said charges properly stated the law as has been hereinabove held.

The law governing the giving or refusing special written charges moved for by the...