Wilson v. State, 8 Div. 319.
| Citation | 22 So.2d 601,247 Ala. 84 |
| Decision Date | 14 June 1945 |
| Docket Number | 8 Div. 319. |
| Parties | WILSON v. STATE. |
| Court | Supreme Court of Alabama |
Wm N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst Atty. Gen., for the petition.
Russell W. Lynne, of Decatur, opposed.
The indictment appearing in the opinion of the Court of Appeals is as follows:
'The grand jury of said county charge that before the finding of this indictment Walter Wilson, alias Tommie Stevenson, did in the nighttime, with intent to steal, break into and enter an inhabited dwelling house which was occupied by Emmet Mitchell, a person lodged therein, against the peace and dignity of the State of Alabama.'
The indictment sought to charge the defendant with the offense of burglary in the first degree. Code 1940, Title 14, § 85.
The petition for certiorari challenges the ruling of the Court of Appeals in holding the indictment demurrable for failing to allege the name of the owner or the proprietor in possession of the burglarized property.
An essential averment in a charge for an offense against property is the negation of the defendant's ownership or possessory right, so as to affirmatively show that the property, general or special, against which the crime is laid, is in another. Emmonds v. State, 87 Ala. 12, 6 So. 54.
This is true of a charge of burglary under our statute because the offense is not committed by one who breaks and enters his own dwelling house or other building. 12 C.J.S. Burglary, § 26, p. 685.
Our cases have uniformly sustained the correctness of this principle. See Ward v. State, 50 Ala. 120; Beall v. State, 53 Ala. 460; Graves v. State, 63 Ala. 134; Johnson v. State, 73 Ala. 483; Adams v. State, 13 Ala.App. 330, 69 So. 357; Jetton v. State, 29 Ala.App. 134, 195 So. 283, certiorari denied 239 Ala. 306, 195 So. 284.
The averment alone of the name of an occupant of the premises, lodged therein, unless it affirmatively appears that he was the owner or the proprietor in possession thereof, does not suffice. In addition to such averment, the other essential allegation first above mentioned is also necessary.
This same section of our burglary law was under consideration in the case of Reeves v. State, 245 Ala. 237, 16 So.2d 699, 701, where, in discussing the requisite averments of an indictment drawn thereunder, it was declared:
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White v. State
...and enters his own dwelling or other building," Stanley v. State, 57 Ala.App. 83, 84, 326 So.2d 148, 149 (1976); Wilson v. State, 247 Ala. 84, 85, 22 So.2d 601, 602 (1945), "[i]t has, however, also been held that the mere existence of the marriage relationship does not preclude the one spou......
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White v. State
...L.R.A. 357, 38 Am.St.Rep. 137, 12 So. 301, 9 Am.Crim.Rep. 517.' And supplemented in 169 A.L.R. (Anno.) 887: 'Alabama.--Wilson v. State (1945) 247 Ala. 84, 22 So.2d 601 (denying writ of certiorari in (1945) Ala.App. , 22 So.2d 600); Jetton v. State (1939) 29 Ala.App. 134, 195 So. 283 (writ o......
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Folsom v. State, CR-93-1835
...and enters his own dwelling or other building,' Stanley v. State, 57 Ala.App. 83, 84, 326 So.2d 148, 149 (1976); Wilson v. State, 247 Ala. 84, 85, 22 So.2d 601, 602 (1945), '[i]t has, however, also been held that the mere existence of the marriage relationship does not preclude the one spou......
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Riggs v. State
...so as to affirmatively show that the property, general or special, against which the crime is laid, is in another.” Wilson v. State, 247 Ala. 84, 85, 22 So.2d 601, 602 (1945) (citing Edmonds v. State, 87 Ala. 12, 6 So. 54 (1889)). At trial, Riggs presented evidence that he was living in the......