Wait v. State

• Decision Date: 15 June 1893
• Citation: 13 So. 584,99 Ala. 164
• Parties: WAIT v. STATE.
• Court: Alabama Supreme Court

13 So. 584

99 Ala. 164

WAIT v. STATE.

Supreme Court of Alabama

June 15, 1893

Appeal from circuit court, St. Clair county; Le Roy F. Box, Judge.

Ben Wait, alias Ben Waits, was convicted of burglary, and appeals. Affirmed.

All the facts are sufficiently stated in the opinion. Upon the introduction of all the evidence the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them: (1) "Under the evidence in this case, the jury cannot convict the defendant of breaking into, with intent to steal a smokehouse, a building within the curtilage of the dwelling house." (2) "The uncontroverted evidence in this case shows that the building alleged to have been broken into was not in the curtilage of the dwelling house, and there can be no conviction of defendant, under the evidence in this case." (3) "If the jury find from the evidence that the building alleged to have been broken and entered by defendant was outside of the inclosure or fence which inclosed the dwelling house of Mrs. Varina Inzer at the time of the alleged breaking, then the jury must find the defendant not guilty." (4) "If the jury believe all the evidence, they must find the defendant not guilty." (5) "If the jury find from the evidence that corn, meat cotton seed, and other plunder was kept in the building alleged to have been broken and entered, and that such building at the time of the breaking, was used for the deposit it of corn, meat, cotten seed, and other plunder then the fact, if it be a fact, that meat was kept and smoked in said house, would not make such building a smokehouse."

M. M Smith, for appellant.

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

McCLELLAN J.

The appellant was indicted, tried, and convicted on a charge of breaking into and entering, with intent to steal, "a smokehouse, a building within the curtilage of the dwelling house of Mrs. Varina Inzer, in which merchandise, meat provisions, things of value, were kept for use, sale, or deposit," etc.; the indictment being drawn under section 3786 of the Code, which declares the breaking and entering, with intent to steal, any "dwelling house or any building, structure, or inclosure within the curtilage of a dwelling-house, though not forming a part thereof," burglary. The evidence as to the character of the house broken into, and its connection with the dwelling house, was to the effect...