Pickett v. State , 60 Ala. 77 ( 1877 )

STONE, J.

We think the demurrer to each count of the indictment in this case should have been sustained. Each count charges separate and distinguishable offenses, in the disjunctive ; and to sustain the indictment, each disjunctive phase of the charge must contain sufficient averments to justify a conviction. The language of the indictment is, that the defendants “ broke into and entered the store of William T. Barham, in which goods, merchandise, or other valuable thing, was kept for use, sale, or deposit, with intent,” &c. The words “ goods ” and “ merchandise,” each, specify a chattel or chattels, and are sufficiently descriptive and specific, without more. Hence, an indictment using these words, or either of them, would be sufficient; and such indictment need not aver that the goods or merchandise had any value. The law assumes they are valuable, and dispenses with.such averment.

The other clause of the statute, and of the indictment in this record, which follows the statute, stands on a different principle. Its language is, “other valuable thing.” We have held that, when the chattel alleged to be in the house, in which a burglarious entrance is charged, is something other than goods or merchandise, it must be averred that such ‘other thing’ was of value. — See Norris v. The State, 50 Ala. 126; Hurt v. The State, at last term, 1876; Rowland v. The State, same term; Crawford v. The State, 44 Ala. 382. So, we hold that the ‘ other thing ’ must be described by name, or in some other way, for two reasons; first, that the court may determine whether the thing or things are of a class which falls within the statute; and, second, that the prisoner may be informed whereof he is charged. — See State v. Raiford, 7 Por. 101; Johnson v. The State, 32 Ala. 583.

This case does not fall within the principle declared in section 4794 of the Code of 1876; for this is , not a case where “a statute creating or defining an offense, uses special or particular terms; ” in which “ an indictment on it may use the general term which, in common language, embraces the special term.”

Reversed and remanded. Let the prisoners remain in custody, until discharged by due course of law.