48 Ala. 273 | Ala. | 1872
We think both the charges asked by the defendant should have been given.
The evidence was insufficient to prove that the house had been broken and entered by the defendant; it did not prove that the house had been -broken at all. Nor was there any evidence that the carpet bag had been in fact stolen. In other words, no larceny was proved.
To make the possession of goods evidence against a party charged with stealing them, the larceny must first be proved, and then the possession of the stolen goods may be presumptive evidence of guilt, unless the party found in the possession of goods can show how he came by them.
Neither did the evidence prove that the house, charged to have been broken and entered, was a dwelling house. A dwelling house is the apartment, building, or cluster of buildings, in which a man with his family resides. — 1 Bishop’s Cr. Law, § 295.
The evidence did not show that any family resided in the house charged to have been broken and entered. It clearly was not the dwelling housé of the witness Bobbins, and the evidence failed to prove that Peyton Borge resided in the house.
The judgment must be reversed, and the cause remanded for a new trial.
