Aldridge v. State

88 Ala. 113 | Ala. | 1889

SOMERVILLE, J.

The defendant was convicted of the burglary of a storehouse, in which goods and merchandise were stored.' — Grim. Oode, 1886, § 3786. The objection urged is an alleged variance between the averment of ownership in the indictment, and the proof of such ownership. The indictment lays the ownership in one “Wilburn M. Bass, business manager of Beulah co-óperation store of the Beulah Alliance.” The evidence tends to show that Bass was the salaried agent of the “Beulah Alliance,” which was a body corporate, and that he had charge of the store as the servant of the corporation. It also tends to show that he used the store as a post-office — a business with which the Alliance had no connection. Whether this occupancy was by mere license, or otherwise, does not affirmatively appear from the evidence.

Where premises, belonging to a corporation, are occupied by a naked agent or servant of the corporation, the rule is, that the ownership must be averred to be in the corporation, and not in the agent. And the corporate name and character of the owner must be stated. — Clark’s Man. Cr. Law, § 872; Emmonds v. State, 87 Ala. 12; 2 Archbold’s Crim. PI. & Prac. (Pomeroy), 1093-1101; 2 Amer. & Eng. Encyc. Law, p. 682, 683; 2 Bish. Or. Law (3d Ed.), §§ 137-138.

The use of the store room for receiving and distributing the United States mails does not appear to rise to the dignity of a tenancy, estate, or other ownership in the premises. And this collateral business being carried on in the mode known to be customary in this country, there is no presumption that there was a letting of the premises to Bass for this purpose, but’ rather a licensej and this fact would not disturb the ownership of the corporation, or its constructive possession through Bass as their agent. — 2 Archbold’s Or. PI. & Pr. (Pomeroy), p. 1098, notej 2 East P. C. c. 15, § 14; pp. 501-502. The allegation of the indictment, moreover, is, that his occupancy was in the capacity of an agent of the Beulah Alliance — not of the Federal Government — and this negatives the idea of a tenancy or ownership in himself personally. The alleged breaking, in other words, is into a store-house as such, not into a post-office.

The court erred in refusing to give the two charges requested by the defendants.

Reversed and remanded.