53 Ala. 460 | Ala. | 1875
The indictment is for burglary, averring a breaking and entry, in the first count, “ of the dwelling house of the late Jno. Tate, said house now, and at the time of the offense committed, belonging to the estate of the late Jno. Tate;” and in the second count, it is averred to have been “ the dwelling house of the estate of the late Jno. Tate.” The common law requires that an indictment for burglary must lay with precision the ownership of the house in which the offense has been committed, and the proof must conform to the averment. 2 Lead. Cr. Cases, 53; 2 Bish. Cr. Pr. § § 135-6-7-8; 2 Whart. Am. Cr. Law, § 1555, et seq.; 1 Euss. Crimes, 806. The statutes have not abrogated or modified this rule; on the contrary, the form of indictment prescribed contains an express averment of ownership. E. C. p. 811, form No. 35.
There is no averment of ownership in either count of this indictment. That which is intended as such an averment shows on its face that the ownership is not disclosed. If the person described as Jno. Tate is dead, and that is the intendment, and during life was the owner of the dwelling, on his death it devolved on his personal representatives, heirs, or devisees. Who these are is not averred. In Pleasant v.
The judgment is reversed and the cause remanded, but the prisoner will remain in custody until discharged by due course of law.