Mason & Franklin v. State , 42 Ala. 543 ( 1868 )

JUDGE, J.

The indictment is not for the offense of burglary, as defined by the common law, but for an offense which may properly be said to be of statutory creation.— Eevised Code, 3695. The statute creating the offense fully defines it; and in every such case, as has been repeatedly ruled by this court, it is sufficient if the indictment charge the offense in the words of the statute. Such was done in the present case; and for this reason, if no other, we would hold that the court rightfully overruled the demurrer. But, further, if no form be prescribed by the Code for indictent, an analagous form, if any, may be used. In the respect in which the indictment before us is said to be deficient, to-wit: in charging that the prisoners broke into and entered an office where money “ was then and there kept for use, sale, or deposit,” it conforms to the analogy furnished by form 53, p. 813, of the Eevised Code, which is for embezzlement of money, &c., by a bank officer; and which concludes by charging that the money was “ in the possession of said bank, or deposited therein.”

But the judgment must be reversed, for the reason that irrelevant evidence was permitted to be introduced against the prisoners, viz: the evidence tending to show that they had burglariously entered the dwelling house of a Mrs. S., which was not charged against them on the record. The bill of exceptions does not purport to set out all the evidence which was introduced on the trial; and we can not look to the full detail of facts connected with the last named, and other burglaries, as set out in the record of another case in this court between the same parties, to show that no error was committed, as was determined in regard to the same evidence in that case. In the aspect of the present ease, the evidence in question, when offered, was prima facie irrelevant, and the records fails to show any ground for its admission.

We do not deem it necessary to notice any other question in the case.

The judgment must be reversed and the cause remanded; and the prisoners will be retained in custody until discharged by due course of law.

The chief justice sustains the overruling of the demurrer to the indictment on the analogy to the prescribed form, and the authority of § 4125 of the Revised Code, which allows the charging of different offenses in the same court in the alternative, when they are of the same character and subject to the same punishment.

The indictment is not assailed on the ground that it charges different offenses in the same count in the alterna" tive; and while we agree with the chief justice as to the effect of § 4125 of the Revised Code, in a proper case, we rely upon the grounds stated in our opinion, as an answer to the only distinct objection made to the indictment.