73 Ala. 483 | Ala. | 1883
— The statute (Code of 1816, § 4344) upon which this indictment is founded, declares the breaking and entry into a railroad car, in which goods, merchandise, or other valuable thing, is kept for use, deposit, or transportation as freight, with the intent to steal, or to commit a felony, is burglary, subject to punishment by imprisonment in the penitentiary. As of burglary, an element of the offense is, that the car broken and entered must be the property ot' another; and of consequence, it is essential that the indictment should allege the ownership. — Graves v. State, 63 Ala. 134. The averment of the indictment is, that the car broken and entered “was the property of the Louisville and Nashville Railroad Company, a corporation organized under the laws of the State of Kentucky.”
The general rule is, that when in an indictment it is necessary to aver the ownership of property, if at the time of the commission of the offense, there is a general and special ownership, the ownership may be alleged in either the general or special owner, or in each in different counts of the indictment. The question most often arises upon indictments for larceny, when, at the time of the stealing, the goods were in the possession óf a bailee; an averment that they were the property of the bailee, or of the bailor, is good, if supported by proof of the general, or of special ownership. If at the time of the breaking and entry, the car was the property of the Louisville and Nashville Railroad Company, the ownership was properly laid in that corporation, though the South and North Alabama Railroad Company may have had the possession and use of it.
There must, however, have been evidence to support the averment of ownership. The fact of the incorporation of the Louisville and Nashville Railroad Company, under the laws of the State of Kentucky, must have been shown to satisfy the averment. To prove the ownership, the same character and degree óf evidence which would be necessary in a civil action, at the instance of 'the company for the injury to the car, is-necessary. The fact of incorporation must be shown, and when that is derived from a statute, of which the courts do not take judicial notice, the statute must be produced. — Ang. & Ames on Cor. § 632. , The statute of Kentucky, upon which the fact of coiqxorate existence depends, was not provable by the production of a printed volume purporting to contain it, not importing upon its face to have been printed by the authority of that State. The mere declaration upon the title page of the volume, that it was “published by authority,” not indicating the authority — that it proceeded from any of the recognized departments of the State government — did not render it admissible under our statute. — Code of 1876, § 3045. The statute simply affirms and declares the rule of evidence which had, pi’ior to its enactment, been recognized and declared in this court. — Cox v. Robinson, 2 S. & P. 91; Smoot v. Fitzhugh, 9 Port. 72; Geron v. Felder, 15 Ala. 304.
For the error in admitting this volume as evidence, the judgment must be x-evex’sed and the cause x’emanded.