Parmer v. State

41 Ala. 416

• Court: Supreme Court of Alabama
• Decided: January 15, 1868
• Status: Published

Opinion

BYRD, J.

1. The court did not err in refusing to allow one of the defendants to sever in his trial.—Hawkins v. The State, 9 Ala. 137; Penal Code, § 638; Revised Code, § 4190.

2. If the ownership, in an indictment for larceny, is laid in a person by name, and it is proved that the property belongs to an estate, of which that person is executor or administrator, the proof will be sufficient to sustain the indictment.—2 Bishop’s Crim. Procedure, § 686. If the ownership is laid in several persons, as joint owners, it is not sufficient to prove that it is in a less number than charged.—2 ib. 707. In this case, the ownership is laid in three persons, Tarver and McWhorter, executors, and Ellen McWhorter, executrix, of Benjamin Tarver, deceased. The evidence shows that the property belonged to the two persons, Tarver and McWhorter, executors of Benjamin Tarver, deceased. The court charged “the jury, if they should find the property belonged to Britton [C. Tarver] and Alexander McWhorter, executors, as shown by the testimony, they should find the defendant guilty.”

Without deciding whether the ownership, as charged in this indictment, should be held to be laid in the persons named as individuals, or as executors of Benjamin Tarver, deceased, we are satisfied that the charge given by the court is erroneous. The Code provides, that ownership may be laid in one of several joint owners; but it does not authorize it to be laid in the name of any number of persons, and a conviction on proof of ownership in any one of them, or in a less number than the whole.

3. There is no evidence of the empanelling of the grand jury, other than the endorsement of the indictment, “A true bill, J. R. Dillard, foreman of the grand jury”; which is not sufficient.

It results, that the judgment of the court must be reversed ; and the prisoner will remain in custody of the sheriff, until discharged by law.