McCord v. State , 79 Ala. 269 ( 1885 )

OLOPTON, J.

An indictment, framed under ' a statute which creates an offense and prescribes its constituent elements, must allege all the circumstances or ingredients, which enter into the essential description of the offense. If the intent is a statutory constituent, not only the acts, in the doing of which the offense consists, but the intent with which they are done, must be alleged. Proof of the intention, without an allegation, is not sufficient.—Eubanks v. State, 17 Ala. 181; 1 Bish. Crim. Proc. § 521; Davis v. State, 68 Ala. 58.

The statute on which the indictment is found declares: “Any person who, knowingly, willfully, and without the consent of the owner thereof, enters upon the lands of another person, and cuts and carries off any timber or rails, with the intention of converting the same to his own use, if the property is of the value of twenty-five dollars or more, is guilty of grand larceny; and if the value of the property is less than twenty-five dollars, the offender is guilty of petit larceny.” Code, § 4360. The evil “intention of converting the same to his own use ” is necessary to convert the prescribed acts into a criihe. The indictment, omitting an allegation of the statutory intention, fails to charge an offense.

Reversed and remanded.