Bowen v. State, 106 Ala. 178

BBICKELL, C. J.

— It was doubtless the purpose of the pleader to charge in the single count, of which the indictment consists, the combined offenses of burglary and grand larceny. But the count is wanting in an averment of the ownership of the goods alleged to have been stolen, and without such averment is wanting in an essential constituent of an indictment for larceny. When the criminating element of the crime of burglary is the intent to steal, if there is not only the criminal breaking, and entry, but a consummation of the evil intent, the felonious taking of Life goods of another, the burglary and larceny are so clearly connected and so combined that the two may be charged in a single count of the indictment. — Gordon v. State, 71 Ala. 315. The count must of necessity, contain the averment of every fact necessary in a separate count for each offense ; otherwise it cannot be construed as charging the combined offense,-but the offense only of which the essential constituents are averred. In its present form the count charges only burglary. The finding by the jury of grand larceny, operated an acquittal of the burglary. The acquittal will not operate to bar a subsequent indictment for the larceny.

The judgment of the circuit court must be reversed and the cause remanded. The appellant will remain in custody until discharged by due course of law.

Case Details

Case Name: Bowen v. State

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1894

Citation: 106 Ala. 178

Court Abbreviation: Ala.