Taylor v. State, 6 Div. 997
Decision Date | 12 October 1976 |
Docket Number | 6 Div. 997 |
Citation | 338 So.2d 509 |
Parties | Thomas TAYLOR v. STATE. |
Court | Alabama Court of Criminal Appeals |
Holder, Moore & Grocholski, Nolen & Enslen, Fayette, for appellant.
None for the State.
Appellant-defendant was convicted of burglary in the second degree on an indictment charging that 'he . . . did with the intent to steal, break into and enter a shop, store or warehouse, known as Foodway, Inc., a corporation which is specially constructed or made to keep goods, wares, merchandise or other valuable things, . . .'
At the conclusion of the State's case, defendant moved to exclude the evidence on the ground that there was a variance between the indictment and the evidence as to the identity or description of the place defendant is alleged to have broken into and entered. The court overruled the objection; defendant reserved an exception and then rested.
The evidence was undisputed that the alleged burglary was of a store known as 'Vick's Family Center' located in Sulligent. and owned the store burglarized. The sign in front of the store was, 'Vick's Family Center.' There were no 'identification marks outside' that said 'Foodway, Inc.' In the following, are extracts from testimony of the main witness for the State on the question of the ownership, name, etc., of the place burglarized:
With reference to the particular store, the testimony of the witness was in part as follows:
'Q. Drygoods in one end and groceries in another?
'A. Vick's logo is the trade mark or sign that says Vick's on it.
'
'A. Foodway.
'A. Millport, is that in Lamar County?
The principal evidence tending to connect defendant with the corpus delicti consisted of a money bag and nineteen rolls of coins found in defendant's automobile the night of the burglary, which automobile was being driven about five miles west of Sulligent and was occupied by defendant and two others. The money bag had written on it the words 'Vick's, Sulligent, Phil Seagraves.' In testifying for the state, Mr. Seagraves identified himself as the manager of Vick's Family Center.
Compliance with the Code form for burglary in the second degree requires that the name of the owner or person in possession be alleged. Code 1940, Tit. 15, § 259, Form 32. A burglary indictment that fails to allege the name of the owner or the person in possession of alleged burglarized property, or to negate defendant's ownership or possession thereof, is defective. Stehl v. State, 283 Ala. 22, 214 So.2d 299; Emmonds 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 itself is not a ground for a reversal of the judgment on appeal. Stehl v. State, supra.
The failure of the indictment to allege the ownership or possession of the property so as to negate defendant's ownership or possession thereof does not lighten the duty of the State to produce evidence to support the averment in the indictment identifying the property alleged to have been broken into and entered. Gilmore v. State, 99 Ala. 154, 13 So. 536; Porter v. State, 17 Ala.App. 550, 86 So. 143; Reeves v. State, 31 Ala.App. 226, 16 So.2d 697, cert. denied, 245 Ala. 237, 16 So.2d 699; Moore v. State, 35 Ala.App. 160, 44 So.2d 789, cert. denied, 253 Ala. 307, 44 So.2d 790.
In ruling on defendant's motion to exclude the evidence, the court stated:
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