Rollins v. State , 98 Ala. 79 ( 1893 )

COLEMAN, J.

The defendants were indicted and convicted of grand larceny. The ownership of the property stolen was laid in Bichard Barrett. The proof showed “that the property alleged to have been stolen was the personal property of Georgia Barrett, wife of Bichard Barrett, and there was no testimony tending to show the husband to be the bailee or agent of the wife.” We have quoted all the evidence on the question, as it appears in the bill of exceptions.

The court charged the jury, “that although the proof showed that the property alleged to have been stolen was the property of Georgia Barrett, wife of Bichard Barrett, the ownership was properly laid in the husband.”

It has been frequently decided that in an indictment for larceny the ownership of the property, though constituting the separate estate of the wife, could be properly laid, either in the husband or wife.—Robinson v. The State. 84 Ala. 434; Ellis v. The State, 76 Ala. 90; Lavender v. The State, 60 Ala. 60; Davis v. The State, 17 Ala. 416. All these decisions were rendered under the law as it existed prior to the adoption of the Act of February 28th, 1887, (Code of 1886-7, Sec. 2341), and tbe decisions were rested upon tbe fact that under tbe latv as it then existed, tbe busband as trustee bad some property interest in, or right of possession to, tbe property, stolen. Under tbe present law tbe ownership of tbe wife, is as complete and independent of tbe busband, as that of the busband is of tbe wife. She can not convey or contract or deliver without bis assent, but this limitation in no way affects her complete ownership of property. She may sue tbe busband and recover from him.—Bruce v. Bruce, 95 Ala. 563; Railroad Co. v. Bynum, 92 Ala. 335.

Ownership of property belonging to tbe busband, could be laid in tbe wife, with equal propriety as tbe ownersbi}3 of property belonging to tbe wife could be averred to be in tbe husband, under tbe present law. Tbe bill of exceptions expressly precludes tbe claim, that as to tbe particular property, tbe busband was either bailee or agent of bis wife.

Difficulties of this character may be easily obviated by having two counts, so as to charge tbe ownership in tbe wife in one count, and in tbe busband in tbe other count.— Butler v. The State, 91 Ala. 87; Hornsby v. The State, 94 Ala. 55.

Eeversed and remanded.