Sheppard v. State , 42 Ala. 531 ( 1868 )

BYRD, J.

The indictment is not good for either burglary or larceny. A nolle prosequi was entered on the supposed charge of burglary, and the solicitor directed to proceed against the prisoner for petit larceny. There is no averment of value of the thing alleged to have been stolen. This is fatal.— Wilson v. The State, 1 Por. 116; State v. Garner, 8 Por. 447; Wharton’s Criminal Law.

It has been held, that where a statute makes the stealing of a particular thing a felony, without reference to its value, then it is unnecessary to aver value. — 1 Bish. Cr. Pro., § 2M; 2 ib., § 676, et seq. As the other questions raised on the record are not likely to occur in the same form on another trial, we deem it proper not to pass them.

For the insufficiency of the indictment, in the respect pointed out, the judgment of the court below is reversed and the cause remanded, and the prisoner will remain in custody until discharged by due course of law.