White v. State , 49 Ala. 344 ( 1873 )

B. F. SAFFOLD, J.

— The appellant, to an indictment for breaking into and entering the storehouse of William C. Hudson and William A. Adams, in which goods or merchandise was kept for sale or on deposit, with intent to steal, pleaded that he had before been in jeopardy for the same offence, under an indictment which charged him in like terms, except that the house was described as “ the storehouse of William C. Hudson and William A. Adams, where goods and merchandise, to wit, twenty yards of calico,' two pairs of boots, and fifty yards of cotton goods,” omitting the words “ were kept for use, sale, or deposit.” A demurrer to this plea for insufficiency was sustained. The indictment set out in the plea is so defective, that, if the defendant had been convicted under it, he could have had any judgment entered up against him reversed. It is neither a charge of burglary, nor of larcency nor of an attempt to commit either. When this is the case there is no jeopardy, and the solicitor is authorized to ask for a nol. pros, and to indict anew. Crawford v. The State, 44 Ala. 382; 1 Bishop Crim. Law, § 862; Rev. Code, § 4146. The demurrer was properly sustained.

2. The indictment alleged the storehouse to have been that of William C. Hudson and William A. Adams. It was proved to have been the property of Hudson, but that he and Adams carried on a mercantile business in it, and owned the goods kept therein for sale. The court charged that if Hudson and Adams were doing business in the house at the time, it would be a sufficient ownership. This charge was not erroneous. Burglary is an offence against the security of the habitation or building, not against it as property. Possession and occupancy are generally sufficient, and the tenure by which the occupier holds the premises will not be inquired into. 1 Bish. Crim. Law, § 1012; 2 Bish. Crim. Proc. 109.

3. Both of the charges asked by the defendant assert abstract propositions directly in the face of the evidence. As to the first, the ownership of the house must certainly be proved substantially as averred. The witness Adams testified that the house belonged to him and Hudson, and they carried on the business of merchants in it. Hudson swore that it belonged to him, but the goods in it belonged to him and Adams. Humphries said the goods found in the possession of the accused were identified as those belonging to “ the parties who were doing business in the house.” The defendant introduced no testimony. This evidence, unopposed, sustained the ownership averred. The real meaning of the charge asked was, that the possession and occupancy proved to have been in Hudson & Adams must give way to the superior title to the property vested in Hudson, and thereby the allegation of ownership was disproved. The proposition is incorrect.

4. As to the second, is it true that the accused cannot be convicted on his own confession alone, without independent proof of the “ corpus delicti¶ ” The expression “ corpus delicti ” means, literally, the body of the crime or offence. Webster defines it to be, “ the substantial and fundamental fact of the crime having been committed; the proofs essential to establish’a crime, the subject of the crime itself, as the body of the person murdered, &c.” When it is said that this must be proved by testimony independent of the confessions of the accused, it is obviously not meant that tbe commission of tbe crime must be so proved, because the effect of tbe admission or confession would be confined to tbe ascertainment only of tbe person who committed it. Sucb a construction would defeat half of tbe reason of tbe caution, wbicb is, that whére a crime actually committed has caused great public excitement and notoriety, persons bave accused themselves of it, though their innocence was afterwards clearly established. In murder, it seems to be restricted to tbe subject of the crime, as tbe body of tbe person supposed to bave been murdered, dead under circumstances indicating crime, — not that be was murdered, nor that be was simply dead. If it means no more than this, in so heinous a crime as murder, it cannot mean, in burglary, more than that there was a breaking or an entering of tbe bouse.

But confessions are divided into judicial and extrajudicial. Of tbe former, are tbe preliminary examinations taken in writing by tbe magistrate pursuant to statutes, and tbe plea of guilty, made in open court, to an indictment. “ Either of these is sufficient to found a conviction, even if to be followed by a sentence of death, they being deliberately made, under tbe deepest solemnities, with tbe advice of counsel, and tbe protecting caution and oversight of tbe judge. Sucb was the rule of tbe Roman law,— confessos injure, pro Judicatis hctberi placet ; and it may be deemed a rule of universal jurisprudence.” 1 Greenleaf on Ev. § 216 ; Starkie on Ev. (Shafswood) t. p. 331. It cannot, therefore, be a principle of law, that tbe confessions alone of tbe accused are insufficient to support his conviction, even in a case of capital felony. It is to tbe extrajudicial confessions, when uncorroborated, that tbe objections to a conviction are directed. As to these, tbe true rule seems to be that stated by Joy, as tbe English law : “ Whatever difference of opinion exists, in respect of tbe weight wbicb ought to be attached to evidence derived from a confession; yet, where it is admissible, and satisfactorily proved, it is deemed sufficient ■by tbe English law to convict a prisoner, even capitally, without tbe aid of airy corroborative testimony of bis having committed tbe offence with wbicb be is charged.” Joy on-Confessions, Law Lib. vol. 40, m. p. 103; 1 Phil. Ev. p. 541, and notes ; Wharton’s Am. Law, § 683; 1 Bisb. Crim. Proc. §§ 500, 501.

Tbe burning of tbe storehouse, and tbe discovery of a portion of tbe goods wbicb were contained in it, in tbe possession of tbe defendant, were otherwise proved than by the confessions. Notwithstanding tbe bouse was consumed by tbe fire, if tbe goods wbicb tbe prisoner bad were obtained out of it, it must bave been by an entrance effected before tbe consumption. A breaking may be done by fire as well as by other means. The entrance and intention being shown, the breaking is not lost or merged in the consumption. The conviction would not rest solely on the confessions. The charge was properly refused, as being contrary to law, and inapplicable to the evidence. The judgment is affirmed.