Harmon v. State , 21 Ala. App. 377 ( 1926 )

The indictment charged this appellant with the offense of burglary. It charged that he, "with intent to steal, broke into and entered the storehouse of George Marcus, in which goods, merchandise, or clothing, things of value were kept for use, sale or deposit," etc.

Necessary to a conviction in this case, under this indictment, it was incumbent upon the state to adduce evidence of a sufficient nature to satisfy the jury beyond a reasonable doubt of the guilt of the defendant, this after a consideration of all the evidence. To that extent it was necessary to prove (1) that the storehouse in question had been broken into and entered by this defendant; (2) that said storehouse was that of George Marcus; and (3) that in said storehouse, at that time, there were goods, merchandise, or clothing, things of value which were kept for sale, use, or deposit. Failure to prove all, or any, of these essential ingredients, under the required rule, would entitle the accused to an acquittal, and, as a result of such failure of proof, the court would be under the duty to direct a verdict for defendant if requested so to do in writing. Such written request was made, and the refusal of the court to give that charge is the question upon which this appeal is rested.

It is manifest that this case was tried in a cursory, indifferent, and careless manner. It is possibly true that the time and venue might be inferred from some of the evidence adduced upon this trial. It is also evident from the witnesses at hand or available these matters could have been more affirmatively shown if the effort to do so had been made. The evidence is also vague and uncertain as to whose store was burglarized; but by inference also probably it might be ascertained that it was the store of George Marcus, the alleged injured party named in the indictment. There was not, however, any effort or attempt upon the part of the state to prove the averment in the indictment No. 3, above stated. It does not appear that any inquiry along that line was made by the state. The court itself did propound, to state witness Emmett Thomas, the questions:

"Q. What sort of a store was this? Ans.: A meat market and grocery store.

"Q. Canned goods and stuff in there? Ans.: Yes, sir."

This was all the evidence on this subject. We regard the term "stuff" here used as being meaningless. This leaves the evidence on this subject limited or confined to "canned goods in there," and this is insufficient to sustain the averment, viz.: "In which goods, merchandise, or clothing, things of value were kept for use, sale, or deposit." We are without authority to supply this patent omission in the evidence by assuming that "canned goods in there" is equivalent to the necessary proof that in said store there were goods, merchandise, or clothing, things of value, and that they were there kept either for use, or for sale, or on deposit. As stated in Gilmore v. State, 99 Ala. 154, 13 So. 536, "There could be no conviction without such proof." Diggs v. State,20 Ala. App. 213, 101 So. 357; Porter v. State, 17 Ala. App. 551,86 So. 143.

There was error in refusing the written charge requested.

Reversed and remanded.