Jackson v. State

102 Ala. 167 | Ala. | 1893

HEAD, J.

It appears that the venire for the grand jurors, for the spring term 1893, of the circuit court of Baldwin county, was so issued that the persons drawn were commanded to be summoned to appear on the second Monday of the term instead of the first; and they were summoned accordingly. The court regularly convened on the first Monday, and adjourned until the second, when the persons who had been drawn and summoned to serve as grand jurors appeared, and of, or from, them a grand jury was organized by the court. This body presented the indictment under which the defendant was tried; and it is now objected that the court had no authority to organize a grand jury, on any other than the first day of the term, and that the indictment is consequently void. There is manifestly nothing in this objection. There is no provision of the statute requiring the grand jurors to be summoned to appear, or that the grand jury shall be organized, on the first day of the term. It may be done at any time during the term.

In order to constitute burglary, the 'intent to steal or commit a felony (to steal, in the present case, as tbr-is the only intent charged in the indictment) must1 existed at the time of the breaking and entering. If this intent was not formed, in the mind of the offender, until after the breaking and entering were complete, there was no burglary. The charge, however, by which the defendant attempted to have this principle presented to the jury, was so drawn that the court could not do otherwise than refuse it. It instructs that the intent to steal must have existed “before and not after” the defendant entered the house. This instruction was calculated to lead the jury to believe that although the intent to steal may have existed at the time of the breaking and entering, yet, if it did not exist after the house was entered, there would be no burglary. Nor is it essential to the crime of burglary that the intent spoken of shall exist before the breaking. It must be concurrent with the breaking and entering, and may be formed at the moment of time the breaking occurs ;

The first count of the indictment lays the ownership of the house, the subject of the alleged burglary, in Mary J. Martin. The only evidence of its ownership was that Mary J. Martin was a married woman, living in the house with her husband who was the head of the family. Under this evidence, the presumption of law is that the house belonged to the husband, The circuit court, therefore, erred in refusing to charge, as requested, that there could be no conviction under the first count.

The case of Wells v. State, 88 Ala. 239, determines that charge number 5, relating to the second count, was properly refused.

For the error mentioned, the judgment is reversed and the cause remanded. Let the defendant remain in custody until discharged by due course of law.