Thomas v. State

• Decision Date: 06 February 1893
• Citation: 12 So. 409,97 Ala. 3
• Parties: THOMAS v. STATE.
• Court: Alabama Supreme Court

12 So. 409

97 Ala. 3

THOMAS v. STATE.

Supreme Court of Alabama

February 6, 1893

Appeal from circuit court, Barbour county; J. M. Carmichael, Judge.

Ernest Thomas was convicted of burglary, and appeals. Reversed.

The indictment was in the following language: "The grand jury of said county charge that, before the finding of this indictment, that Ernest Thomas broke into and entered a sample room, in the Arlington Hotel, a building in the city of Eufaula, the property of Mrs. William N. Reeves and Mrs Jere H. Reeves, with the intent to steal, and did feloniously take and carry away therefrom one coat, of the value of twelve dollars, the personal property of Thaddeus C Doughtie, of less value than twenty-five dollars, against the peace and dignity of the state of Alabama." The defendant demurred to the indictment of the following grounds: "(1) That said indictment does not allege that the building broken into and entered was a dwelling house, or a building within the curtilage of a dwelling house. (2) That said indictment fails to allege that the building alleged to have been broken into and entered, was a building in which goods, merchandise, or valuable things were kept for use sale, or deposit. (3) Said indictment is indefinite, in that it alleges the ownership of the building alleged to have been broken into and burglarized in Mrs. William N. Reeves and Mrs. Jere H. Reeves, when it should simply aver the Christian names of the owners, without any title or formality." The court overruled these demurrers, and the defendant excepted.

S. H Dent, Jr., for appellant.

Wm. L. Martin, Atty. Gen., for the State.

McCLELLAN J.

This is a prosecution for burglary. The indictment charges that Ernest Thomas "broke into and entered a sample room in the Arlington Hotel, a building in the city of Eufaula," etc. This is the only description of the house, room, or inclosure broken into. The Arlington Hotel is not alleged to be a dwelling house, nor are any facts averred showing it to have been a dwelling house, within the first member of the statute defining burglary, nor are any facts averred showing that the sample room of said hotel was a dwelling house, or within the curtilage of a dwelling house, in the contemplation of the first clause of the statute, and, on the other hand, there is equal absence of averment to the effect that said sample room was "a shop, store, warehouse, or other building,...