| Ala. | Jun 30, 1906
The indictment as returned by the grand jury contained three counts. On motion of the defendant the third count was stricken. The first count charges burglary of a railroad car, the property of the Southern Railway Company, a corporation under the Iuav of the state of Virginia, and in all essential particulars the count is sufficient. — Code 1896, § 4418. No plea denying the existence of the corporation Avas filed. Hence there was no necessity for proving the incorporation as alleged. — Acts of 1900-01, p. 2285. The second count attempts to charge grand larceny. The ownership of the. property is laid in the Southern Railway Company, but there is no averment in this count that it is a corporation, a partnership, or a natural person. On the reason employed in the case of Emmonds v. State, 87 Ala. 12" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/emmonds-v-state-6513457?utm_source=webapp" opinion_id="6513457">87 Ala. 12, 6 South. 54, and on the authority of that case, it must be held that the count is insufficient with respect of the allegation of ownership of the property alleged to have been stolen. But this Avill not work a reversal of the judgment; for, Avhile the verdict of the jury finds the defendant guilty on the first and second counts, and the judgment of the conviction follows the verdict, yet the record affirmatively shoAvs that the defendant was sentenced only for the offense of burglary. We are therefore able to say that Ave are satisfied that no injury
The evidence showed without conflict that, while the car burglarized was “an Illinois Central Railroad car,” it was in use by the Southern Railway Company for the transportation of freight. The goods that were in the car at the time had been brought in the car by the Southern Railway Company over its line to I-Ieflin, the point where the burglary was committed, and the car was in that company’s undisputed possession, on its tracks at the time. Under these facts the ownership was properly laid in the Southern Railway Company.— Matthews’ Case, 55 Ala. 65" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/matthews-v-state-6509346?utm_source=webapp" opinion_id="6509346">55 Ala. 65, 28 Am. Rep. 698; Allen’s Case, 134 Ala. 159" court="Ala." date_filed="1901-11-15" href="https://app.midpage.ai/document/allen-v-state-6519598?utm_source=webapp" opinion_id="6519598">134 Ala. 159, 32 South. 318. The case of Johnson v. State, 113 Ala. 66, 20 South. 590, is not in conflict with the views expressed above, but the opinion in that case sustains the conclusion here reached. In that case the ownership was averred as being in the Alabama Mineral Railroad Company, a corporation, and the evidence upon which the opinion was based showed neither property, general or special, in, nor possession of, the car in the Alabama Mineral Railroad Company.
All other questions presented by this record are settled adversely to the defendant in the cases of Ex parte Bud Owens, 42 So. 676" court="Ala." date_filed="1906-12-06" href="https://app.midpage.ai/document/ex-parte-owens-7362303?utm_source=webapp" opinion_id="7362303">42 South. 676 and Burgess v. State, (at present term) 42 So. 681" court="Ala." date_filed="1906-07-06" href="https://app.midpage.ai/document/burgess-v-state-7362357?utm_source=webapp" opinion_id="7362357">42 South. 681.
No error has been found in the record, and the judgment appealed from is affirmed.
Affirmed.