Whitehead v. State, 6 Div. 335

• Court: Alabama Court of Appeals
• Writing for the Court: BROWN, P.J.
• Citation: 16 Ala.App. 427,78 So. 467
• Docket Number: 6 Div. 335
• Decision Date: 02 April 1918
• Parties: WHITEHEAD v. STATE.

78 So. 467

16 Ala.App. 427

WHITEHEAD
v.
STATE.

6 Div. 335

Court of Appeals of Alabama

April 2, 1918

Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.

Chester Whitehead was convicted of bringing stolen goods into the state, and he appeals. Reversed and remanded.

Allen, Bell & Sadler and E.N. Hamill, all of Birmingham, for appellant.

F. Loyd Tate, Atty. Gen., and David W. Fuller, Asst. Atty. Gen., for the State.

BROWN, P.J.

The count of the indictment to which the verdict of the jury responded follows the form laid down in the Code for indictments for the offense of "bringing stolen goods into this state," under section 7328 of the Code. Code, § 7161, form 25. This count charges that the defendant "feloniously took and carried away in the state of Illinois one automobile of the value of $750, the personal property of Frank Rose, and brought said automobile into the county of Jefferson, in this state, against the peace;" etc. This form first appeared in the Code of 1886, as form 19 (section 4899), under the heading "Bringing Stolen Property into This State," for the offense denounced by section 3793 of that Code, which was in the following language:

"Bringing Stolen Property into This State.--Any person who brings into this state any personal property which he has stolen elsewhere, must, on conviction, be punished as if he had stolen it in this state."

This statute and the form prescribed for indictments thereunder were carried forward into the Code of 1896 without change, but in bringing the statute forward into the present Code, as section 7328, it was revised by the code commissioner so as to read as follows:

"Bringing Stolen Property into This State.--Any person

who fraudulently brings into this state any personal property which he knew was stolen elsewhere, must, on conviction be punished as if he had stolen it in this state. (Form 25 [20].)"

While it cannot be doubted that this revision effected a material change of the statute in respect to the elements of the offense, and broadened its scope so as to embrace transactions not within the purview of the original statute, it cannot be doubted that one who steals property in another state and brings the stolen property into this state commits the offense denounced by the statute as amended, and that the averments of the indictment quoted above are tantamount to an averment that the defendant fraudulently [78 So. 468] [16 Ala.App. 428] brought the property into this state knowing that it was stolen. Form 25, which is followed by the count of the indictment under consideration, was brought forward from the Code of 1896 into the present Code, under the following heading: "Bringing Stolen Property into This State.--Section 7328 (5053)." Code 1907, vol. 3, p. 664. The effect of bringing this form forward as applicable to this section of the Code as revised and adopted into the Code of 1907, under the ruling of the Supreme Court, "was a legislative recognition and declaration that the form was sufficient, under the amended statute." Bailey v. State, 99 Ala. 145, 13 So. 566; Coleman v. State, 150 Ala. 64, 43 So. 715; Thomas v. State, 156 Ala. 171, 47 So. 257; Noles v. State, 24 Ala. 672; Wilson v. State, 61 Ala. 151; McCullough v. State, 63 Ala. 75; Smith v. State, 63 Ala. 55; Jones v. State, 136 Ala. 123, 34 So. 236; First Mayf. Dig. p. 422, § 10. The indictment was sufficient to cover any offense denounced by the statute. Weed v. State, 55 Ala. 15, overruling Bryan's Case, 45 Ala. 86, declaring a different rule; Darrington v. State, 162 Ala. 60, 50 So. 396; Arrington v. State, 13 Ala. App. 359, 69 So. 385; Ex parte Arrington, 195 Ala. 694, 70 So. 1012.

The demurrers to the indictment were properly overruled. Resolving doubtful intendments arising from the averments in the pleas of former jeopardy against the pleader must be done on demurrer. It appears that the defendant was indicted in the former case, not for an unlawful conspiracy to steal property in another state and bring it into this state, but for fraudulently bringing into this state an automobile, the property of one McKinley, knowing that it was stolen in the state of Illinois. The indictment in the instant case is for a like offense committed with respect to the property of Frank Rose. It thus appears that the offense the subject of defendant's pleas was a different and distinct offense from the one here charged, and the demurrers to the pleas were well taken and were sustained without error. Johns v. State, 13 Ala. App. 283, 69 So. 259; Id., 195 Ala. 695, 70 So. 1013; Hawkins v. State, 1 Port. 475, 27 Am.Dec. 641; Gorden v. State, 71 Ala. 315; Foster v. State, 39 Ala. 229; Dominick v. State, 40 Ala. 680, 91 Am.Dec. 496; Harrison v. State, 36...