Andrews v. State , 123 Ala. 42 ( 1898 )

HARALSON, J.

The indictment charged that the money stolen was the property of the Louisville & Nashville Railroad Company, and it was stolen by defendant from the warehouse of the Pensacola & Selma Division of saitl railroad company. The proof tended to sustain tlie allegations of the indictment. The State introduced in evidence the charter of said railroad company showing it to bare been incorporated under the laws of Kentucky, and asked the depot agent who was being examined, “Whether the railroad at Allenton depot in said county was the Pensacola & Selma Division of the Louisville & Nashville Railroad Company?” The defendant objected to the question because, as he stated, “there is better evidence of the fact sought to be proved.” The objection was overruled, and the witness testified that said railroad was generally called and understood to be the Pensacola & Selma Division of said railroad company.

In this ruling there was no error. It was entirely competent for the witness to answer the question as he did; and, as for the objection raised against it, it does not appear that there was any better evidence of the fact sought to be proved, than the answer of the witness disclosed.

The proof showed that the money was taken from the office of said railroad, and the indictment charged it to have been stolen from the warehouse of the Pensacola & Selma Division of said railroad company. On account of this supposed variance, the defendant moved to exclude from the jury all the evidence about the money having been taken from the office of said building; and for the same reason, he asked the court to give the general charge in his favor.

The bill of exceptions states that the $20 which Avas stolen was in an iron safe AAdiich Avas in the office of said railroad company at the depot at Allenton, Wilcox county, Alabama; that the office was a room ten by tAvelve feet, with a high desk in it, and the safe was under the desk; that there Avas a door opening from said office into a Avaiting room for AAdiites, Avhich was twelve by fifteen feet in dimensions, and a door opened from said office into a freight room, Avhich was twelve by fifteen feet; that there Avas a waiting room for colored persons, tAvelve by fifteen feet adjoining said office,, but no door opened therefrom into said office, and that all these rooms were under one roof, with a platform about twelve feet wide extending in front of all of them.

A warehouse, in its popular acceptation, signifies an apartment or building for the temporary reception and storage of goods and merchandise. — Lynch v. The State, 89 Ala. 18; Bishop Stat. Crimes, § 293. Of similar meaning is the word storehouse. In respect to the latter this court long ago held that a room in the second story of a' two story house, which was accessible only by means of a flight of steps which led up to it on the outside, and which was used by one of the proprietors of the house as a sleeping apartment, .the lower room being-used by the proprietors jointly for retailing liquors, was a storehouse within the statutory prohibition against gaming at a storehouse for retailing spirituous liquors. Johnson v. The State, 19 Ala. 527. Again it was held that a room in a warehouse, used by a clerk for the transaction of business and a sleeping room, was a public house within the statute against gaming. —Windham v. The State, 26 Ala. 69; Brown v. The State, 27 Ala. 47.

Here we have in .this depot, a room used for the purpose of storing freight which opened by a door into an office occupied by the clerk, from which the money was stolen. That the office under the facts above stated, Avas a part of the Avarehouse Ave -apprehend cannot be fairly questioned. The" court, therefore, committed no error in refusing to exclude the evidence for the alleged variance.

For the same reasons, the general charge requested by defendant was properly refused.

Affirmed.