Rose v. State , 117 Ala. 77 ( 1897 )

HAEALSON, J.

1. The venue was not proved, and for this reason, the general charge for the defendant should have been given. — Dorsey v. The State, 111 Ala. 40.

2. The indictment was found in the circuit court of Tuscaloosa county, and filed therein on the 26th November, 1896. That court, in the absence of some statute authorizing its removal and trial in another court, alone had jurisdiction to try the cause. The act creating “The Tuscaloosa County Law and Equity Court” (Acts 1896-97, p. 262), in its 9th section, provides as to criminal cases, “That all criminal causes now or hereafter pending in the circuit court of Tuscaloosa county shall, at the request of the defendant, or at the request of the .solicitor hereafter provided for, be at once transferred for trial to this court herein established; * * * and the clerk of said circuit court * * * shall transfer to and file in the court herein established all the original papers in such causes, together with certified copies of all dockets and minute entries in said causes, and thereupon this court herein established shall have exclusive jurisdiction of such causes.”

There is nothing in the transcript of the record before ms .that shows anything touching the transfer of this cause from the circuit to the law and equity court of said county of Tuscaloosa; and from aught appearing, not a single provision of the statute authorizing the transfer of this case to the latter from the former court was complied with. We cannot presume the statute was complied with, so as to give the law and equity court jurisdiction to try the cause. — Goodloe v. The State, 60 Ala. 93.

3. There were two counts in the indictment, one charging burglary of a storehouse, under section 3786 of the Code of 1886, Cr. Code of 1896, §4417, and the other, grand larceny, for stealing personalproperty from a storehouse, under section 3789, Cr. Code of 1896. §5049. These counts were properly joined, and the State is not required in such case, to elect for which of the offenses it will prosecute. — Orr v. The State, 107 Ala. 35.

Under the statute, — Code of 1886, § 3786, Cr. Code of 1896, §4417, — the value of goods in the designated buildings, which the burglar intended to steal is not an element of the offense. Under the grand larceny statute, Code, § 3789, Cr. Code of 1896, § 5049, — the stealing of “any personal property of any value” from a dwelling, storehouse, etc. is made grand larceny. The crime is made a felony irrespective of the thing stolen, but it must be' alleged and proved that the property stolen was of some value.

The 4th charge asked by defendant and refused was, that if the jury should “believe from the evidence that no value has been proven, and that the goods were not taken from a storehouse, they will find the defendant not guilty.” This charge was evidently intended to apply to the second count in the indictment, since the crime of burglary, charged in the first count, did not depend upon values of goods; but, it was not so limited. While the latter part of the charge was applicable to the first count, since there was evidence tending to show that the goods were not stolen from the storehouse, and the State introduced no evidence to establish the burglary except that defendant was found in possession of goods that had been stolen from the store, yet the charge in its first hypothesis, as to values of the goods taken, rendered it inapplicable to that count and its tendency if given would have been to confuse and mislead the jury. Having been asked generally, as applicable to both counts, it was properly refused, without reference to its correctness as to the second count. It may be added, that the first part of the charge was abstract, as there was proof tending to show that the goods taken were of some value.

4. The 6th charge was property refused. It asserts a correct general proposition of law, but fails of application here. There was proof that the goods taken were of some value, and there was no proof to the contrary. A charge should be refused the only tendency of which would be, if given, to throw doubt or discredit on a fact in. the case established without conflict of evidence.

Reversed and remanded.