State v. Alford

• Decision Date: 14 November 1927
• Docket Number: 12313.
• Citation: State v. Alford, 142 S.C. 43, 140 S.E. 261 (S.C. 1927)
• Parties: STATE v. ALFORD.
• Court: South Carolina Supreme Court

140 S.E. 261

142 S.C. 43

STATE v. ALFORD.

No. 12313.

Supreme Court of South Carolina

November 14, 1927

Appeal from General Sessions Circuit Court of Horry County; M. L Bonham, Judge.

Leon Alford was convicted of housebreaking, and appeals. Reversed.

Ford & Suggs, of Conway, for appellant.

L. M Gasque, Sol., of Marion, for the State.

BLEASE J.

Leon Alford was convicted and sentenced in the court of general sessions for Horry county for the crime of housebreaking, and he has appealed to this court.

The two exceptions, which may be considered together, charge error in the refusal of the trial judge, Hon. M. L. Bonham, to grant the defendant's motion for a directed verdict of acquittal. The indictment alleged that the defendant "with force and arms at Conway in the county and state aforesaid, the storehouse of one A. Bell there situate, feloniously did break and enter with intent the goods and chattels of A. Bell in the said storehouse then and there being found, then and there unlawfully to steal, take and carry away."

The undisputed evidence showed that the storehouse, alleged to have been broken and entered, was owned by Mrs. J. E. Bell; that it was occupied by Bayboro Shop Company, a mercantile corporation, which also owned the goods therein. The defendant claimed that there was a fatal variance in the allegations of the indictment, and the proof as to the ownership and occupancy of the storehouse and the goods located therein.

The trial judge held that housebreaking was a crime against the habitation-a crime against possession, rather than against property. We are not advised of a case in our reports which directly sustains this holding, but we think the law announced was correct. Housebreaking, as a crime, is very similar to the crime of burglary. Our statute that makes housebreaking a felony (section 33, vol. 2, Code 1922) was evidently passed to cover wrongdoing, which could not properly be held to be burglary. Burglary and arson are crimes against possession and not against property. State v. Copeland, 46 S.C. 13, 23 S.E. 980; State v. Carter, 49 S.C. 265, 27 S.E. 106; State v. Trapp, 17 S.C. 467, 43 Am. Rep. 614. "An indictment for arson may allege the dwelling house to be that of the person occupying it as such, or of the real owner." Syllabus, State v. Carter, supra.

It is our opinion that indictments for the crimes of burglary and housebreaking may also properly allege the house burglarized, or broken into, to be that of the person who occupies it.

While the circuit judge correctly held that the indictment in the case at bar could allege the storehouse as being owned or in the possession of the tenant, or occupant of the same instead of in the name of the real owner, we think the defendant was entitled to a directed verdict, since...