Wilson v. State, 8 Div. 409.

• Decision Date: 17 April 1945
• Docket Number: 8 Div. 409.
• Citation: 32 Ala.App. 127,22 So.2d 600
• Parties: WILSON v. STATE.
• Court: Alabama Court of Appeals

22 So.2d 600

32 Ala.App. 127

WILSON v. STATE.

8 Div. 409.

Alabama Court of Appeals

April 17, 1945

Rehearing Denied May 15, 1945.

Russell W. Lynne, of Decatur, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst Atty. Gen., for the State.

The following are grounds of the demurrer to the indictment:

'Third. The form designated by the statute for an indictment for the offense sought to be charged requires that the owner or the one in possession of the building and the one inhabiting the building at the time be designated, and the indictment here only names the one inhabiting the building.'

'Fifth. It fails to name or designate the owner or possessor of said building.'

'Eighth. It is not alleged or shown this defendant was not the owner of the building broken into.'

'Ninth. For aught appearing, the defendant owned the building broken into.'

RICE Judge.

Appellant was convicted of the offense of burglary in the first degree and his punishment fixed at imprisonment in the penitentiary for the term of ten years. Code 1940, Title 14, § 85.

Said Section 85 of Title 14 of the Code of 1940, which specifically denounces the crime for which appellant stands convicted, is (omitting the number and title) in the following language, to-wit: 'Any person who, in the nighttime, with intent to steal or to commit a felony, breaks into and enters any inhabited dwelling house, or any other house or building, which is occupied by any person lodged therein is guilty of burglary in the first degree, and shall on conviction be punished at the discretion of the jury, by death or by imprisonment in the penitentiary for not less than ten years.' There is provided in Code 1940, Title 15, § 259, a form for indictments under the section above quoted denouncing the offense with which appellant was charged and of which he was convicted. Said form--which under the Code Section wherein it is found, and by Code 1940, Title 15, Section 230, is declared to be sufficient--is as it appears in the Code in words and figures as follows, to-wit:

'29. Burglary in first degree. (§ 85 of Title 14.)

'A B. did, in the nighttime, with intent to steal (or to commit arson in the first degree, or other designated felony, as the case may be, or in the alternative) break into and enter an inhabited dwelling (or other house or building within the statute, describing it and giving the name of the owner or person in possession) which was occupied by C. D., a person lodged therein, against, etc.' (Italics supplied by us.)

There were three counts in the indictment under which appellant was put to trial.

For purposes of illustration--the other two counts being subject to the same defect--we quote the first of said counts. It reads: 'The Grand Jury of said County charge that before the finding of this indictment Walter Wilson, alias Tommie Stevenson, did, in the...