Storrs v. State

Nov 15, 1900
Versions:129 Ala. 101
TYiáON, J.

Prior to the adoption of the present Code the stealing of property from a dwelling house, storehouse or warehouse, etc., without regard to its value, was grand larceny. The (‘rime as thus denounced, was single and divisible and involved in it no lower grade of the offense than the one charged in the indictment. Code of 1886, § 3789; Stone v. The State, 115 Ala. 121. Under the present-statutes, where the larceny is from a dwelling house, store house or warehouse, etc., the crime may be grand or petit larceny, depending upon the value of the personal property stolen. If it is of the value of five dollars or more, the stealing of it is grand larceny; if of less value than five dollars, it is petit-larceny. — Code, H 5049, 5050.

It cannot he seriously doubted that, under the statutes, if a defendant is indicted for the felony, if the evidence should show the value of the article stolen was less than five dollars, that a conviction may be had for the lesser offense. — -Code, § 5306; Cohen v. The State, 50 Ala. 108. Of this lesser offense the justice of the peace had jurisdiction. — Code, § 4630. And if the affidavit upon which the defendant was tried by the justice charged petit larceny of the pistol and he was acquitted, then under the authority of Moore v. The State, 71 Ala. 307, his acquittal, unless procured by fraud, connivance or collusion on his part, is a bar to this prosecution.

The first and second grounds of demurrer to defendant’s plea of former acquittal proceed upon the idea that the plea affirmatively shows that the justice of the peace who tried him had no jurisdiction. They were doubtless framed with reference to the statute as it existed in the Code of 1886, overlooking the change in it, pointed out above. The remaining ground asserts that it was essential that, the judgment of acquittal be shown by the plea. While it has been repeatedly held by this court that a failure to set out in plea the written complaint on which the justice proceeded was a *104defect which could be reached by demurrer, it has never been ruled that it is necessary that it should set, out the judgment rendered.—Cross v. The State, 117 Ala. 73, and authorities therein cited. In our opinion, an averment of an acquittal is sufficient, without setting out the judgment rendered, which must, of course, be proved by the record of such judgment. The plea was not subject to the demurrer, in whatever other respect it may have been defective.

Reversed and remanded.