Pressley v. State

111 Ala. 34 | Ala. | 1895

COLEMAN, J.

The defendant was indicted for burglary. The charge is that the defendant, “with intent to steal, broke into and entered a building, to-wit, the smoke-house of Wheeler Young, in which said smokehouse meat and flour, things of value, were kept for use, .sale or deposit,” &c. The defendant demurred to the indictment, assigning several grounds, all of which were overruled.

The statute reads as follows : “Any person, who, either in the night or day-time, with intent to steal, or to commit a felony, breaks into and enters a dwelling-house, or any building, structure, or enclosure within the curtilage of a dwelling-house,'though not forming a part thereof, or into any shop, store, ware-house, or other building, structure, or enclosure, in which any goods, merchandise, or other valuable thing, is kept for use, sale, or deposit,'” &c. — Cr. Code, § 3786.

The gist of the demurrer is, that inasmuch as the indictment avers the building to be a smoke-house, it should also have averred that it was within the curtilage of the dwelling-house. The argument can not be maintained. A smoke-house is not necessarily a building within the curtilage of a dwelling. It may be a smokehouse and yet so located and situated as to distance and surrounding circumstances as not to be within the curtilage of the dwelling. It may be that an indictment which charges the burglary of a building within the curtilage is not sustained by proof of the burglary of a building without the curtilage, and vice versa, it may be that proof of a burglary within the curtilage is a variance when the indictment charges the burglary without the curtilage, but the question of a variance is not raised by objection to evidence or by instructions to the jury, and we will not consider it.

After the witness, "Wheeler Young, had detailed the circumstances of tracing a part of the stolen articles to defendant’s house, the conversation with him relative to the theft, the finding of a part, which was pointed out by the defendant hear the. defendant’s house, concealed in a tree top, the fact that defendant accompanied him about five miles back to an old uninhabited out-house, when the defendant went up into the loft and got another portion of the stolen property, and had concluded his testimony without objection, the defendant then, “moved to exclude the declarations of the defendant and his confessions as testified to, on the ground that they were not voluntary.” Appellant’s counsel, in their brief, state the rule correctly as follows : “Though a confession may be obtained by the influence of threats or promises, if they disclose the extraneous facts which show their truth and tend to prove the commission of the crime, these facts may be proved, and so much of the confession as relates strictly to the facts discovered, may be proven, but not the entire confession.” — Banks v. The State, 84 Ala. 430; Owen v. The State, 78 Ala. 425; Burton v. The State, 107 Ala. 108. The objection goes to all the declarations and confessions testified to by the witness. Some of these declarations were clearly admissible, to-wit, the defendant’s reply to his aunt, when she proposed to go after his uncle, in order to settle the matter, “that she need not go, that they could settle it without him;” also as they neared the tree top, where the property was concealed, when the defendant pointed to the tree top, and remarked, “there it is, I got it out of your smoke-house.” As we understand the argument of appellant, they insist, that a part of this statement, “there it is,” was admissible, but the remainder, “I got it out of your smoke-house,” was a confession of guilt and not admissible. If this was true, the court might pr'operly have overruled the motion, as it applied to legal as well as illegal evidence. It was incumbent upon the defendant to have framed.his objection in such way as to apply only to the illegal evidence. A court is not required to make the separation for him. We are clearly of the opinion that a part of the evidence objected to was not illegal, conceding that the defendant had not waived his right to object, by per-' mitting the evidence to be admitted without objection, until he had received the benefit of such as was favora-* ble to him. Under- all the circumstances, the court did not err in overruling the motion.

The only remaining question is as to whether there was such a breaking as to constitute burglary. The evidence shows the building was made of logs and rested upon the ground, and was without a floor other than the ground itself. The entry was effected by digging a hole under the lower log and going through this hole under the log into the house. There can be no doubt that the entrance effected in this way was a burglary of the most pronounced character. Citations are scarcely required in support of this proposition. — Donohoo v. State, 36 Ala. 281; Walker v. State, 52 Ala. 376; Olds v. State, 97 Ala. 81.

Affirmed.