McElroy v. State

Alabama Court of Appeals

McElroy v. State

142 So. 590, 25 Ala. App. 164, 1932 Ala. App. LEXIS 141

CourtAlabama Court of Appeals

DecidedJune 7, 1932

Docket5 Div. 868.

StatusPublished

This text of 142 So. 590 (McElroy v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McElroy v. State, 142 So. 590, 25 Ala. App. 164, 1932 Ala. App. LEXIS 141 (Ala. Ct. App. 1932).

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Opinion

RICE, J.

Appellant was adjudged guilty, after verdict by the jury, of the offense sought to be charged by that count, and that count only, of the indictment, which was in the following language, to wit: “2. The Grand Jury of said County further charge that before the finding of this indictment. John Wesley McElroy, did buy, receive, conceal, or aid in concealing, one spotted bull yearling, an animal of the cow kind, the personal property of Zebedee Triplett, against the peace and dignity of the State of Alabama.”

The statute (Code 1923, § 4912) under which this appellant was prosecuted, as indicated by the language quoted, is not essentially dif *165 ferent from the same (Code 1896, § 5054) as it stood at the time the opinion was written in the case of Anderson v. State, 130 Ala. 126, 30 So. 375.

Likewise, the count of the indictment upon which appellant was convicted, here, is similar in all respects to the indictment in the said Anderson Case, supra.

And so here, as in that case, the (count of the) indictment charging no offense, because of the omission of the essential averment to the effect that “defendant knew, etc., the property described in the (count of the) indictment was stolen and had not the intent to restore it to the owner,” the judgment of conviction cannot stand.

It is reversed, and the. cause remanded, for further proceedings in accordance with the law. Dunklin v. State, 134 Ala. 195, 32 So. 666.

Reversed and remanded.

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RICE, J.

Appellant was adjudged guilty, after verdict by the jury, of the offense sought to be charged by that count, and that count only, of the indictment, which was in the following language, to wit: “2. The Grand Jury of said County further charge that before the finding of this indictment. John Wesley McElroy, did buy, receive, conceal, or aid in concealing, one spotted bull yearling, an animal of the cow kind, the personal property of Zebedee Triplett, against the peace and dignity of the State of Alabama.”

The statute (Code 1923, § 4912) under which this appellant was prosecuted, as indicated by the language quoted, is not essentially dif *165 ferent from the same (Code 1896, § 5054) as it stood at the time the opinion was written in the case of Anderson v. State, 130 Ala. 126, 30 So. 375.

Likewise, the count of the indictment upon which appellant was convicted, here, is similar in all respects to the indictment in the said Anderson Case, supra.

And so here, as in that case, the (count of the) indictment charging no offense, because of the omission of the essential averment to the effect that “defendant knew, etc., the property described in the (count of the) indictment was stolen and had not the intent to restore it to the owner,” the judgment of conviction cannot stand.

It is reversed, and the. cause remanded, for further proceedings in accordance with the law. Dunklin v. State, 134 Ala. 195, 32 So. 666.

Reversed and remanded.

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142 So. 590, 25 Ala. App. 164, 1932 Ala. App. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelroy-v-state-alactapp-1932.

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