Bailey v. State

Supreme Court of Alabama

Bailey v. State

116 Ala. 437

CourtSupreme Court of Alabama

DecidedNovember 15, 1897

StatusPublished

Cited by7 cases

This text of 116 Ala. 437 (Bailey v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey v. State, 116 Ala. 437 (Ala. 1897).

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Opinion

BRICKELL, O'. J.

1. The objections to the indictment were not well .taken. . An indictment for burglary, with intent to steal, may, in the same count aver the .intent and the actual larceny, without being obnoxious .to an objection for duplicity. The averment of the larceny is not regarded as the averment of a distinct offense, but merely as the averment that the particular burglarious intent was consummated.— Wolf v. State, 49 Ala. 359; Adams v. State, 55 Ala. 143; Gordon v. State, 71 Ala. 315.

2. In offenses against property, the indictment must aver the ownership if it be known 7 When the ownership resides in a corporation, it is sufficient to aver or employ the corporation name. It is not necessary, as is supposed by the objection taken, to aver that the corporation is either a foreign or a domestic corporation, nor is it necessary to aver that the corporation had power or capacity to acquire the property, nor to negative that the defendant was a stockholder in the corporation. Rapalje on Larceny, §§. 103-151.

3. The bill of .exceptions recites that it contains all [440]*440the evidence given on the trial. We have carefully examined the evidence, and it is silent as to the locality of the offense — that it was committed in the county of Cull-man. The offense, therefore, was not proved as laid, and according to repeated decisions of this court, the court below erred in the refusal of the general affirmative charge to find for the defendant, requested in writing. — Brown v. State, 100 Ala. 92; Randolph v. State, Ib. 139; Justice v. State, 99 Ala. 180, and authorities.

4. As the cause must be reversed for the error pointed out, it is unnecessary to consider the numerous objections to the admission of evidence ; they may not arise on another trial, or may be differently presented. There was no error in the refusal of the other instructions requested.

Let the judgment be reversed and the cause remanded; the defendant will remain in custody until discharged by due course of law.

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BRICKELL, O'. J.

1. The objections to the indictment were not well .taken. . An indictment for burglary, with intent to steal, may, in the same count aver the .intent and the actual larceny, without being obnoxious .to an objection for duplicity. The averment of the larceny is not regarded as the averment of a distinct offense, but merely as the averment that the particular burglarious intent was consummated.— Wolf v. State, 49 Ala. 359; Adams v. State, 55 Ala. 143; Gordon v. State, 71 Ala. 315.

2. In offenses against property, the indictment must aver the ownership if it be known 7 When the ownership resides in a corporation, it is sufficient to aver or employ the corporation name. It is not necessary, as is supposed by the objection taken, to aver that the corporation is either a foreign or a domestic corporation, nor is it necessary to aver that the corporation had power or capacity to acquire the property, nor to negative that the defendant was a stockholder in the corporation. Rapalje on Larceny, §§. 103-151.

3. The bill of .exceptions recites that it contains all [440]*440the evidence given on the trial. We have carefully examined the evidence, and it is silent as to the locality of the offense — that it was committed in the county of Cull-man. The offense, therefore, was not proved as laid, and according to repeated decisions of this court, the court below erred in the refusal of the general affirmative charge to find for the defendant, requested in writing. — Brown v. State, 100 Ala. 92; Randolph v. State, Ib. 139; Justice v. State, 99 Ala. 180, and authorities.

4. As the cause must be reversed for the error pointed out, it is unnecessary to consider the numerous objections to the admission of evidence ; they may not arise on another trial, or may be differently presented. There was no error in the refusal of the other instructions requested.

Let the judgment be reversed and the cause remanded; the defendant will remain in custody until discharged by due course of law.

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116 Ala. 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-state-ala-1897.

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