| Ala. | Dec 15, 1875
The indictment in this cause, under section 3695 of the Revised Code, charges that defendant “broke into and entered a shop, store, warehouse, or other building, the property of J. Z. Andrews, in which goods, merchandize, or other valuable thing was kept for use, sale, or deposit, with intent to steal, against the peace and dignity,” &c. The language used is that contained in the section.
A statute creating a crime often specifies certain particular acts and things as constituting it, and then declares further, in alternative words, that the offense may be committed otherwise by acts and things which are not specifically designated, but are described or classed generally, as having something in common with those, or some of those that are specified. Thus, the section under which this prosecution is conducted, denounces as guilty of burglary, “ any person who either in the night or day time, with intent to steal, or to commit a felony, breaks into and enters.......any shop, store, warehouse or other building, [the property of another person] in which any goods, merchandize, or other valuable thing, is kept for use, sale or deposit.” In an indictment on such a statute, when the State’s counsel intends to rely on proof of the commission of the offense in a manner or by means other than those particularized as sufficient to constitute it, he should specify those other means, and not rely merely on the general description; which, in the instance before us, is contained in the words, “or other valuable
It has been decided that the terms, “goods” and “merchandize,” used in the statute, import value, but that “ cotton in the seed” or “lint cotton,” does not.—Norris & Coleman v. State, January term, 1874; Webb v. State, (supra.)
The cases in which it has been held, that an indictment charging an offense in the words of the statute creating it, is good, will be found to be cases in which the- terms used are those specially designated by the statute as constituting it, or the general description, with an addition under videlicet, or otherwise, particularizing the things or means other than those mentioned in the statute that are relied on, and not the words merely of the general description.—The State v. Click, 2 Ala. 26" court="Ala." date_filed="1841-01-15" href="https://app.midpage.ai/document/state-v-click-6501385?utm_source=webapp" opinion_id="6501385">2 Ala. 26; Mason & Franklin v. State, 42 id. 543; Lodano v. State, 25 id. 54.
A charge in the words of such general description without any specification, or with such general words alone, following in the alternative, after the words specifically used in the statute, is not good. Section 1361 (1176) of the Code, makes it a punishable offense to “obstruct a public road by a fence, bar, or other impediment.” And in Johnson v. State, 32 Ala. 581" court="Ala." date_filed="1858-06-15" href="https://app.midpage.ai/document/coleman-v-state-6506286?utm_source=webapp" opinion_id="6506286">32 Ala. 581, an indictment under this law averred that defendant did obstruct a public road, “by a fence, bar, or other impediment ” — without specifying or particularizing what constituted such other impediment' — and it was decided that the indictment was not good. If it had averred that the obstruction was by a fence, or by a bar, it would have then been suffi cient; but the addition, although in the language of the statute, of the alternative words, “or some other impediment,” created an uncertainty which made the whole indictment b'ad.—Johnson v. State, supra; Raiford’s case, 7 Port., 101" court="Ala." date_filed="1838-01-15" href="https://app.midpage.ai/document/state-v-raiford-6529328?utm_source=webapp" opinion_id="6529328">7 Porter, 101.
Section 3695 evidently means that the “other valuable thing ” contemplated, shall be something ejusdem generis with “goods” and “merchandize;” at least that it must be personalty. . But things are not necessarily personal chatties. The word is one of very wide meaning. Things may be real or personal, corporeal or incorporeal, secular or spiritual. Indeed, it is perhaps the nomen generalissimum of the English language. A valuable thing kept in a building for use, might be a picture painted on the walls of a house, much more valuable than the house itself, kept therein and used as a means of making money by the exhibition of it, or in the instruction
The charge asked by the defendant and given by the court, was not entirely correct. While it is true that the law presumes every one to be innocent until the contrary appears by evidence, it does not presume every one to have a good character. It presumes nothing in respect to a defendant’s general reputation. In the absence of all proof on the subject, his character is not to be taken as either good or bad; and the jury are not authorized by assuming that it is one or the other, to let it have weight in inclining them toward either his acquittal or his conviction. In such a case, their verdict should be founded entirely on the evidence legally introduced, and not on any idea unsupported by direct testiinony concerning his general character. And it is the office and duty of the judge who tries a cause, to see to it, by his control over counsel and his instructions to the jury, that justice is administered according to law, and not according to the prejudices and passions of the community. Of course, also, instructions of the judge to the jury which will mislead them to the prejudice of a prisoner on a point, in respect to which there is no evidence, are erroneous and will cause a reversal of the judgment.
The judgment of the court below is reversed and the cause remanded. ; The appellant must remain in custody until dis-. charged by due course of law. '