55 Ala. 116 | Ala. | 1876
Under the act to amend section 3706 of the Bevised Code of Alabama (Pamph. Acts of 1874-5, p. 259), several articles and chattels are numerated, the larceny of which is made a felony, without any reference to their value; and then there is added this clause: “ and any person who steals any personal property, other than that hereinbefore enumerated, exceeding twenty-five dollars in value, is guilty of grand larceny.” The stealing of any of the enumerated articles is made grand larceny per se, no matter what may be the value of the article stolen. In fact, as to the articles named, value is not made an ingredient of the offense. “ Part of an outstanding crop of corn,” is one of the enumerated articles. In an indictment for the larceny of part of an outstanding crop of corn, as for the larceny of a horse, mare, gelding, &o., it is not necessary to aver that such article had any value. — Gabriel v. The State, 40 Ala. 357; Yarborough v. The State, 41 Ala. 405. It results from what we have said, that if the prisoner was shown to be guilty of stealing the corn charged, part of the outstanding crop of corn, the property of Joe Ézell and Mrs. Patsy McConnell, he could and should have been convicted of the felony, without any averment or proof of value.
But the statute we have been construing, so far as it relates to an outstanding crop of corn or cotton, creates a new offense, unknown to the common law. Corn or cotton growing, or unsevered from the feehold, partakes of the nature of the realty, and, in the absence of the statute, is not the subject of larceny. — 1 Washb. Beal Prop. 6; 2 "Whar. Amer. Or. Law, §§ 1751-2. The statute which created this offense, defined its grade, and declared the punishment therefor. There is no statute, or principle of the common law, which declares that it is a public offense to take or carry away growing or ungathered corn, under any circumstances other than those
There is another fatal objection to the present conviction. While the statute declares it is felony to steal any part of an outstanding crop of corn or cotton, without reference to its value, there is no such provision as to any of the subjects of petit larceny. — See section 3708, Revised Code. An indictment for the offense last named must aver some value of the article alleged to be stolen; and the proof must show that it was valuable.— Wilson's case, 1 Por. 118; Sheppard v. The State, 42 Ala. 531; 2 Bish. Cr. Proc. § 713. The present indictment contains no averment of value.
The principles declared above render it necessary that we reverse the judgment of conviction in this case. The verdict of the jury in this record operates an acquittal of the accused of the felony charged. He can not be again put on trial for that offense. — 1 Brick. Dig. 518, §§ 985-6 ; Bell & Murray v. The State, 48 Ala. 684. In one possible contingency, a new indictment may be preferred against defendant, and a trial had for petit larceny; on none other, growing out of the act for which he was tried. That contingency is, that the corn had been broken or severed from the realty, and was after-wards, by an act separable from the breaking, stolen by defendant. This would constitute petit larceny. Should it be known that the supposed case can not be made out in proof, it will be useless to put the prisoner again on trial; and it will be alike due to him and to the public that he be set at liberty.
Reversed and remanded. Let the prisoner remain in custody, until discharged by due course of law.