Noojin v. State, 7 Div. 486.
| Decision Date | 27 February 1940 |
| Docket Number | 7 Div. 486. |
| Citation | 194 So. 414,29 Ala.App. 178 |
| Court | Alabama Court of Appeals |
| Parties | NOOJIN v. STATE. |
Appeal from Circuit Court, DeKalb County; A. E. Hawkins, Judge.
David Noojin was convicted of burglary, and he appeals.
Reversed and remanded.
J. A. Johnson and C. A. Wolfes, both of Fort Payne, for appellant.
Thos S. Lawson, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen for the State.
The appellant was convicted of burglary under an indictment as follows: "The Grand Jury of said County charges that before the finding of this indictment and since June 6th 1935, David Noojin, whose name to the Grand Jury is otherwise unknown than as stated, with intent to steal or commit a felony, broke into and entered a school house, or other building structure or inclosure, of the State of Alabama, in which goods, merchandise, or other valuable things were kept for use, sale, or deposit, contrary to law and against the peace and dignity of the State of Alabama."
By appropriate demurrer, properly presented at the trial, the defendant challenged the legal sufficiency of the indictment, in that it failed, in the alternative averment, to allege that the "structure" or "inclosure" was specially constructed or made to keep goods, wares or merchandise or other valuable things. The court overruled the demurrer.
No proof was made by the State, or in fact attempted, so far as the record discloses, of the ownership of the burglarized property and the appellant, by counsel, argues that the court erred in refusing to him the general affirmative charge.
Two questions are therefore presented by this appeal: (a) Was the indictment subject to the demurrer interposed? (b) Was the defendant entitled to the general affirmative charge by reason of the failure of proof as to the ownership of the property alleged to have been burglarized? Both questions, in our opinion, should be resolved in favor of the appellant.
(a) It has long been the settled law of this State that alternative averments in an indictment must each charge an indictable offense, and if one or more fail to charge such offense, the indictment is subject to demurrer. In fact this court has previously held that an indictment similar to the one here involved is subject to appropriate demurrer in failing to allege that the structure or inclosure was specially constructed or made for keeping of goods, wares or merchandise or valuable...
To continue reading
Request your trial
-
White v. State
...of Washington County] 2 Wall. [U.S.] 501, e. g., the overseers of the poor ([Rouse v. Moore] 18 Johns [N.Y.] 407).' Noojin v. State, 29 Ala.App. 178, 194 So. 414, held the expression 'of the State of Alabama' could not be taken by judicial notice to mean that the schoolhouse at Ruhamer was ......
-
Hufstetler v. State, 67571
...v. Ivey, 73 Ohio L.Abs. 152, 136 N.E.2d 622(2), (1953), affd. 73 Ohio L.Abs. 154, 136 N.E.2d 624 (1955). Compare Noojin v. State, 29 Ala.App. 178(6), 194 So. 414(6) (1940). Appellant also contends that the evidence presented at trial as to "ownership" of the courthouse showed the property t......
-
Taylor v. State, 6 Div. 997
...v. State, 87 Ala. 12, 6 So. 54; Wilson v. State, 32 Ala.App. 127, 22 So.2d 600, cert. denied, 247 Ala. 84, 22 So.2d 601; Noojin v. State, 29 Ala.App. 178, 194 So. 414. As defendant did not raise the question of the sufficiency of the indictment on the trial, its insufficiency in and of itse......
-
Anthony v. State
...7 So.2d 513 30 Ala.App. 425 ANTHONY v. STATE. 6 Div. 707.Alabama Court of ... Steel & Iron Co., a corporation. Noojin v ... State, 29 Ala.App. 178, 194 So. 414; Stuckey v ... State, 28 ... ...