Sullivan v. State

• Decision Date: 18 March 1930
• Docket Number: 8 Div. 868.
• Citation: 23 Ala.App. 464,127 So. 256
• Parties: SULLIVAN ET AL. v. STATE.
• Court: Alabama Court of Appeals

127 So. 256

23 Ala.App. 464

SULLIVAN ET AL. v. STATE.

8 Div. 868.

Court of Appeals of Alabama

March 18, 1930

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Betty Sullivan, Margaret Terry, and Mary Blackburn were convicted of "unlawfully, wantonly or maliciously" destroying or injuring "seven windows, two mattresses, one table electric wires, the property of Madison County," and they appeal.

Reversed and remanded.

Watts &amp White, of Huntsville, for appellants.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

It is evident from the wording of the affidavits in these cases that the prosecutions were brought against these appellants for the violation of section 3212 of the Code 1923, and that the form of indictment 71, was used in the preparation of the affidavits, as this form was therein literally followed.

We are of the opinion, for the acts herein complained of, that the prosecutions should have been under section 3474 of the 1923 Code, and that form 26 (of indictment) should have been used in the formulating of the affidavits.

The state having elected to proceed under section 3212 of the Code, which among other things makes it unlawful for any person to unlawfully, wantonly, or maliciously disfigure destroy or injure any article or commodity of value of another, it was necessary, as in all criminal cases, for the state to meet the burden of proof resting upon it, to prove each and every material averment in the complaint, and under this statute it was necessary to prove the value of the injury or damage to the owner of the property, as the penalty for a violation of this statute is based upon the value of the injury or damage to the property, and the statute expressly provides, "on conviction [the defendant shall] be fined not less than twice the value of the injury or damage to the owner of the property," as a minimum punishment, nor more than five hundred dollars as a maximum. Upon these trials, there was no testimony showing or tending to show the value of the alleged injury or damage to the owner of the property; and, this being true, the court was without authority of law to assess a fine of fifty dollars against the defendants, as was done by the court in this case. It was error so to do. Moreover, the evidence of the state was allowed to take a very general course, the witnesses being permitted to testify generally as to what "they," did, and what he sa...