Holt v. State , 86 Ala. 599 ( 1888 )

CLOPTON, J.

The general rule in criminal pleading requires, that every fact and circums+ance, which enters into and constitutes an essential ingredient of the offense, shall be set forth in the indictment; otherwise no offense is charged. If the indictment-is framed under a statute, which defines the offense created, and prescribes its constituents, it must allege in the words of the statute, or other words equivalent in meaning, all the statutory elements which are essentially descriptive of the offense.—Davis v. State, 68 Ala. 58; McCord v. State, 79 Ala. 269.

The appellant was indicted and convicted under section 3794 of the Code of 1886, which declares: “Any person who buys, receives, conceals, or aids in concealing any personal property whatever, knowing that it has been stolen, and not having the intent to restore it to the owner, must, on conviction, be punished as if he had stolen it.” Under the statute, the intent not to restore the property to the owner is an essential part of the description of the offense, which must be proved in order to convict; and whatever it is necessary to prove, must be alleged with certainty and precision. McCord v. State, supra.

The indictment omits to set forth the particular intent contained in the statute; but charges, in the several counts, that the defendant feloniously bought, received, concealed, or aided in concealing the property, knowing it to have been stolen. "When the words of the statute are not strictly pursued, words conveying the same meaning, having as full signification, must be employed. The mere act of buying, receiving, or concealing property, knowing it to have been stolen, is not, of itself, the offense denounced by the statute. It must be done with the intent not to restore the property to the owner. Without such intent, the act can not be felonious. The term feloniously, as employed in the indictment, is merely the statement of the legal result of the facts, including the intent, prescribed by the statute. In such case, the statement of a legal result is insufficient. Under a statute which contained the following description of the offense— “who shall buy, conceal, or receive any stolen goods and chattels, knowing the same to be stolen, with intent to defraud the owner” — it was held that an indictment, which omitted to state that the defendant received the goods with the intent to defraud the owner, was defective, though it alleged he had feloniously received them, knowing them to be stolen.—Pelts v. State, 3 Blackf. 28. The use of the term feloniously does not supply the omission to allege “not having the intent to restore the property to the owner.” United States v. Forrest, 3 Cr. C. C. 56; State v. Comfort, 5 Mo. 357.

Reversed and remanded.