Stone v. State , 63 Ala. 115 ( 1879 )

MANNING, J.

A gin-house is not one of those structures or inclosures, “other than a shop, store, warehouse, or building,” which may be the subject of burglary, according to section 4343 of the Code of 1876, only when “specially constructed or made to keep such goods, merchandise, or other valuable thing,” as must be contained therein at the time of being broken into with a larcenous or felonious intent. A gin-house is an edifice which, like a barn, is of a permanent and substantial kind, and is well known in communities where cotton is grown, as the building to which seed-cotton is carried from the field, and where the seeds are separated by the machine called a gin, from the lint, or wool. It was,' therefore, not necessary it should be described in the indictment as “specially constructed or made,” for the use to which it was put. The structures that must be thus described, are those of a temporary character, erected for special purposes or occasions. The demurrer to the indictment was, therefore, properly overruled.

2. The two rooms of the gin-house, which was no longer used for the ginning of cotton, were externally accessible through separate doors; and in the partition between them, there was no opening intended to be used for ingress and egress. But the hole in it, through which the lint-cotton as expelled from the gin, when that should be in operation, was intended to pass, was large enough to permit a man to crawl through. No such breaking as is requisite to constitute burglary was, therefore, committed in a man’s passing through this hole from the gin-room, which was in the law-* ful control of itobinson, and of which he had the door-key. It could not be regarded like the case of an entering by' a chimney, because a gin had not been used in the building for two or more years, and the two rooms were now put to separate uses, and in charge of different persons.

Nor was defendant guilty of burglary — house-breaking— by opening the door of the room of which he had the key and lawful use, and entering therein, though he did so with the intent to pass through the hole mentioned, and did pass through it, into Eobinson’s room, and steal thence his cotton. He could not commit the offense of house-breaking, by entering the part of the house of which he had the use and control, though he did so to enable him the better to commit a larceny of the property of another person. It is for the larceny he should, in such a case, be indicted.

Let the judgment of the Circuit Court be reversed, and the cause remanded. The defendant must remain in custody, until discharged by due course of law.