44 Ala. 398 | Ala. | 1870
The appellant, James Wicks, and six others, were indicted in the circuit court of Wilcox county in this State, at the spring term, 1869, for burglary. There were three counts in the indictment; to each one of which there was a demurrer. The demurrers to the first and third counts were sustained, but oyerruled as to the second. The second count was in these words?:
*399 “And the grand jury of said county further charge, that before the finding of this indictment, Giles Kimbrough, Eandal Kimbrough, Adison Kimbrough, Phoebe Kimbrough, Henry Swearingen, James Wicks, and Franklin Madison, broke into and entered the store of John B. Wood, in which goods and merchandise were kept for use, sale or deposit, with intent to steal, against the peace and dignity of the State of Alabama.”
The cause of demurrer is, that it was not averred in said count of said indictment, “ that said goods and merchandise were of any value, or were valuable things.”
Upon this demurrer being overruled, issue was joined upon the plea of not guilty. And on Wicks’ motion the court permitted a severance on the trial below, and Wicks was tried alone, and convicted and sentenced to the penitentiary for two years. From this conviction Wicks appeals to this court. — Eev. Code, § 4190.
The second count of this indictment was sufficient. The allegation charging the offense is strictly in accordance with the language of the statute, and the form of statement is in compliance with that laid down in the Revised Code. — Rev. Code, § 3695; Forms, No. 35, p. 811. It has been repeatedly held by this court, that such an indictment is sufficient, — Mason et al. v. The State, 42 Ala. 543; Gabriel v. The State, 40 Ala. 357.
On the trial, the accused offered evidence tending to show that he had not been present at the commission of the offense, and that he had not aided or abetted in its commission. There was some proof offered, tending to show that he had confessed his guilt before the committing magistrate. But the only certain proof on the faetS^of the commission of the offense was,rfthat a portion of the' goods taken from the store were found 'concealed in Wicks’ possession, on the Monday after the store had been broken into on the Saturday night before. There was proof tending to show that the goods thus found had been received by Wicks from the parties who had taken them from the stoi’e, some time after they had been so taken. There was no evidence except the bare possession of the goods, and an equiyocal confession before the magistrate, that Wicks
Upon this testimony, the court charged the jury, “ that the fact that the defendant had possession of the goods taken from Woods’ store, and that a part were found concealed, is evidence of the fact that he did not come by the goods honestly, and the jury can look to that fact in determining the question of guilt under the present indictment, unless satisfactorily explained.” This charge was objected to and exception reserved.
The defendant then asked the court to charge the jury, that if they “ believed from the evidence that the defendant received some of the goods taken, on the night of the burglary, from Eandal Kimbrough and Henry Swearingen, even though he may have known that they were stolen, he could not be convicted on this indictment.” This was refused, and the defendant excepted.
The defendant then also asked the court to charge the jury, that they 6‘ must be satisfied from the evidence, beyond all reasonable doubt, that the principals, Eandal Kimbrough and Henry Swearingen, are guilty, before they can find the defendant, Jim Wicks, guilty of aiding and abetting in the commission of the offense charged.” This charge the court refused, and the defendant excepted.
The charge of the court must be referred to the testimony upon which it is based, in order to determine its correctness. — Noles v. The State, 26 Ala. 31.
In this case the statute law has abolished all distinction between principals and accessories before the fact of the commission of the offense, and between principals in the first and second degree. Such persons are now all guilty and punishablé in the same degree. — Eev. Code, § 4129. The testimony must show an actual participation in the commission of the offense, else the party charged can not be convicted under this statute. Breaking into the house with intent to steal is the gravamen of the offense, It is not
The first charge asked and refused was property denied. When referred to the whole testimony in the case it was incorrect. It rested the defense on a part of the testimony only. It denies to the proof of a confession of guilt any effect whatever. If the accused had been shown to have had no connection with the breaking into the store and the original taking of the goods, then he could not have been convicted under this statute. The charge asked assumes
The third charge, which was the second one that was refused, should not have been given. It has reference to a condition of the law that does not now exist in this State. The distinction between principals and accessories in this offense is now abolished by the Code. All are principals who in any way participate in the commission of the offense. Rev, Code, §§ 4129, 3541, 3695 ; 42 Ala. 543, supra.
The judgment of the court below is reversed, and the cause is remanded for a new trial. The defendant will be detained in custody until discharged by due course of law.