Mitchell v. State , 45 Ala. App. 11 ( 1969 )

PRICE, Presiding Judge.

The indictment charged in three counts, burglary, grand larceny, and receiving stolen property. Conviction was had under the third count, charging that defendant did buy, receive, conceal or aid in concealing seven class-room type table-model television sets, of the value of $125.-00 each, one small green safe of the value of $75.00, all of the aggregate value of $950.00, “the personal property of the Covington County Board of Education,” knowing said items were stolen and not having the intent to restore them to the owner.

Proof was made of the burglary and of the larceny of the articles listed in the indictment.

State’s witness Glen Raley testified he was the principal of Red Level High School. The small green safe set out in the indictment was found abandoned on a dirt road approximately three miles from the Red Level High School. The television sets were never recovered.

None of the property was found in the possession of defendant. The only evidence which might tend to connect the defendant was evidence involving the safe.

The only proof of ownership of the stolen property appears from the following questions and answers in the testimony of Mr. Raley:

“Q. And that was your safe that was found out there?

“A. It was.

“Q. And you were called there to identify it?

"A. I was. Not necessarily to identify it, but I was told they had found the safe. Of course I went, and it was the safe.

“Q. What, in your best judgment, was the value of the safe at that time?

“A. I bought it second hand. Approximately $75.00.”

* * * * * *

“Q. Now who did these television sets belong to ?

“A. I think the County Board of Education. They provided us with them.”

The State has the burden of proving the allegation of ownership of the property as laid in the indictment. Rather v. State, 24 Ala.App. 452, 136 So. 483; Smith v. State, 42 Ala.App. 650, 176 So.2d 882.

There was a fatal variance between the allegation that the small green safe was owned by the Covington County Board of Education and the proof that the owner was Glen Raley, the Principal of Red Level High School. Clonts v. State, 42 Ala.App. 287, 161 So.2d 155; Gaskin v. State, 42 Ala.App. 310, 163 So.2d 220. The trial court erred in refusing the general affirmative charge and in denying the motion for a new trial.

It is unnecessary for us to pass upon the other questions raised. They will probably not arise in the event of another trial.

Reversed and remanded.