Lynch v. State

| Ala. | Nov 15, 1889

McCLELLAN, J.

A warehouse is defined to be “a place adapted to the reception and storage of goods and merchandise.” — 2 E. & L. Law Diet., p. 1344; 2 Bouv. Law Diet., p. 799. A cellar, used merely for the deposit of goods intended for removal and sale, is a “warehouse” within the statute of 7 and 8 Geo. 4, defining burglary. — Regina v. Hill, 2 M. & R. 458.

The term “warehouse,” as employed in the Kentucky statutes against larceny, means any house, not an office or shop, in which goods, wares and merchandise are usually deposited for safe-keeping, or for sale, and includes a granary built and used for keeping aud preserving farming utensils and the like. — Ray v. Commonwealth, 12 Bush, 397" court="Ky. Ct. App." date_filed="1876-11-16" href="https://app.midpage.ai/document/ray-v-commonwealth-7379395?utm_source=webapp" opinion_id="7379395">12 Bush (Ky.), 397.

This court has said, that in construing the word “warehouse,” as used in the penal statute concerning larceny from it and other like structures, the legislature must be held to “have had in contemplation in making the enactment such warehouses as they and our people are familiar with throughout the State,” which would include “a covered structure used for storing cotton bales, one side and end of which were planked up, and the others left open so that wagons could drive under to load and unload, which, together with two acres of land connected with it, is inclosed by a plank fence nine feet high, the gates of which are kept locked.” — Hagan v. State, 52 Ala. 373" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/hagan-v-state-6509030?utm_source=webapp" opinion_id="6509030">52 Ala. 373.

To these several definitions we may add further, that to our minds the term necessarily involves the idea of an inclosure of some sort, some kind of structural barrier to the ingress of the public, designed to afford protection to the goods deposited therein, and to contribute to their safekeeping. The open, uninclosed, though covered place disclosed in the facts of this case, to which the public had unobstructed access, and which was “used as a common passage-way to all persons going about the depot,” where, indeed, all persons had a right and were expected to go, in leaving or approaching railway trains, was not a warehouse within any of these definitions, or within the letter or spirit o£ the statute under which the indictment was drawn. The charge of larceny from a warehouse could not be supported by proof of larceny from this place. There was a fatal variance between the allegation and the evidence, and the defendant’s motion to exclude the evidence should have been sustained. — Henry v. State, 39 Ala. 679" court="Ala." date_filed="1866-01-15" href="https://app.midpage.ai/document/henry-v-state-6507210?utm_source=webapp" opinion_id="6507210">39 Ala. 679.

The judgment can not be helped by reference to the fact, that the indictment sufficiently presents the charge of grand larceny, without the averment as to the warehouse. In that aspect, the latter averment becomes a matter of unnecessary particularity in the description of the offense; but, not being laid in such a way, as under a videlicet, as to show that it is not intended as an affirmative averment, it must be proved as laid, though the indictment would have been good without it.

The judgment of the City Court is reversed, and the cause remanded.

STONE, C. J.

I can not agree that there is such a variance between the offense charged, and that which the testimony tends to prove, as to preclude a conviction of larceny on the present indictment. I think the less grave offense, larceny, is necessarily included' in that preferred by the jury — larceny from a warehouse. — Code of 1886, § 4490; Henry v. State, 33 Ala. 389" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/henry-v-state-6506382?utm_source=webapp" opinion_id="6506382">33 Ala. 389; Hudson v. State, 34 Ala. 253" court="Ala." date_filed="1859-06-15" href="https://app.midpage.ai/document/hudson-v-state-6506500?utm_source=webapp" opinion_id="6506500">34 Ala. 253; Allen v. State, 58 Ala. 98" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/allen-v-state-6509756?utm_source=webapp" opinion_id="6509756">58 Ala. 98.