Welch v. State

• Decision Date: 21 May 1908
• Citation: 46 So. 856,156 Ala. 112
• Parties: WELCH v. STATE.
• Court: Alabama Supreme Court

46 So. 856

156 Ala. 112

WELCH v. STATE.

Supreme Court of Alabama

May 21, 1908

Appeal from Criminal Court, Jefferson County; A. C. Howze, Judge.

Arthur Welch was convicted of burglary, and he appeals. Reversed and remanded.

The indictment charges that Arthur Welch, with intent to steal broke into and entered the storehouse of Billy B. Bell, in which goods, spirituous or malt liquors, things of value were kept for use, sale, or deposit, and having so broken and entered feloniously took and carried away therefrom two quarts of whisky of the value of $3, the personal property of Billy B. Bell, against, etc. The demurrers were that the indictment charges no offense under the law; that it is void on its face; that it contains a misjoinder of offenses in the same count; that it attempts to charge burglary and grand larceny in the same count; that it attempts to charge a felony and a misdemeanor in the same count; that the offense of petit larceny is not included in the offense of burglary and cannot be joined in the same count of the indictment with the charge of burglary.

The evidence tended to show that Bell was the owner of a saloon and that on the Sunday morning in question a window glass in the back window of the saloon was broken, the part broken being about 13X36 inches; that there was a negro restaurant in the rear, and that when the proprietor left the store Saturday night this window was all right; that the witness Laborde was attracted early Sunday morning by the breaking of glass, and went to the rear of the saloon, and saw the defendant in the saloon, and held him there until the officer came and arrested him; that the defendant had at that time two quarts of Sunnybrook whisky, which witness made him put down on the billiard table.

During the course of the trial a jury which was out deliberating on a verdict returned into court with their verdict, which was: "We, the jury, find the defendant not guilty." Thereupon the court, in the presence of the jury trying this case, asked the jury if that was their verdict, and said to the other jury: "Your verdict is a surprise to the court." The solicitor also remarked: "Render one more verdict and quit." There was exception taken by the present defendant to the remarks of the court and the solicitor made to the jury rendering the verdict in the presence of the jury trying this case. Thereupon the court instructed the jury trying this case to pay no attention to the remarks made to the other jury, but to try the case on the evidence.

The following charges were refused to defendant:

"(1) If the evidence on behalf of defendant, or any part of such evidence, is sufficient to raise in the minds of any juror a reasonable doubt of defendant's guilt, and does raise such a doubt, then I charge you that you cannot convict the defendant. (2) The court charges the jury that if they believe the evidence they cannot convict the defendant of petit larceny." "(6) Unless you believe beyond all reasonable doubt that the defendant broke and entered the storehouse in question, you cannot convict this defendant."

Gaston & Pettus, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

SIMPSON J.

The indictment under which the defendant was convicted was demurred to, on the ground that it charged both burglary, a felony, and petit larceny, a misdemeanor. The demurrer was properly overruled. The indictment charges burglary. While it was not necessary to have alleged the actual taking and carrying away of the goods, yet, when alleged, as in this indictment, in connection with defendant's "having so broken and entered feloniously," it does not constitute a separate charge of larceny, but merely alleges that the intent to steal was carried into effect. Walker v. State, 97 Ala. 85, 12 So. 83; Barber v. State, 78 Ala. 19; Snow v. State, 54 Ala. 138; Wolf v. State, 49 Ala. 359; Bailey v. State, 116 Ala. 437, 22 So. 918; Adams v. State, 55 Ala. 143, 144.

There was no error in permitting the question to the witness Bell, "Was your attention called to anything?" and his answer thereto, "The officers called my attention to two quarts of whisky setting on the billiard table, which was the same brand as the whisky in my place." The witness testified of his own knowledge to the facts that the whisky was setting on the billiard table and that it was the same brand as the whisky in his place. It matters not who called his attention to it. The question was merely to direct his mind to the subject of inquiry.

The witness Laborde, having testified that he found that a glass "about eight by ten" was broken out, was asked "How large was the glass that was broken?" and replied, "Big enough for a man to go through." This answer was objected to, and a motion made to exclude it,...