Opinion
2 Div. 609.
November 23, 1937.
Appeal from Circuit Court, Sumter County; A. S. Johnson, Judge.
Elmer, alias J. E., Fuller was convicted of burglary, and he appeals.
Affirmed.
The indictment charges that defendant, "with intent to steal, broke into and entered the dwelling house, or building within the curtilage of the dwelling house, or shop, store, warehouse or other building of J. J. McElroy, in which goods, merchandise or clothing, things of value, were kept for use, sale or deposit." Defendant moved to quash the indictment "because said indictment shows on its face that it was not signed by W. R. Kimbrough, Circuit Solicitor of the Seventeenth Judicial Circuit, after the grand jury returned said indictment, and that the only signature of any circuit solicitor on said indictment shows on its face to be a printed form which was placed thereon by the job printer, whoever printed the forms on which the indictment was written." This motion was overruled.
Defendant filed a plea alleging that he had once been in jeopardy for the offense of which he is now charged; that he had previously been put upon trial for the same offense, in the circuit court of Sumter county; that, after due arraignment and plea of not guilty, and thus being placed in jeopardy, and after all testimony for both the State and the defendant was offered, the jury was allowed to separate without the consent of the defendant, and remained separated during the night; that the following morning when the jury reassembled one of the jurors did not take his place but remained away during the time the court was charging the jury; that, when the jury was about to retire to make up its verdict, it was discovered that one of the jurors was missing; that defendant refused to consent to said juror assuming his duties at that time; and that the court discharged the jury for said reason without any verdict having been returned by the jury.
Over defendant's objection the State was permitted to introduce in evidence the judge's bench notes on the former trial, in which it was recited that "By consent of the defendant and the State solicitor, and in the interest of justice, a mistrial is entered, the jury discharged and the cause continued."
Thereafter the trial court sustained a motion by the State to strike defendant's said plea of former jeopardy, "for the reason that the facts stated in said plea do not constitute former jeopardy, and for the further reason that sufficient excuse for the discharge of the jury and the entering of a mistrial is shown by said plea."
Defendant's refused charges were of like effect to charge 1, as follows: "I charge you, Gentlemen of the jury, that if you believe from the evidence that the store that is said to have been burglarized was operated in the name of Mrs. J. J. McElroy and not in the name of J. J. McElroy, you will find the defendant not guilty."
D. M. Boswell, of Butler, for appellant.
A discharge of a jury without a lawful or valid excuse, after the cause is submitted to the jury, works an acquittal and a bar to a subsequent proceeding. Foster v. State, 88 Ala. 182, 7 So. 185; Reynolds v. State, 92 Ala. 44, 9 So. 398; McGehee v. State, 58 Ala. 360; Ned v. State, 7 Port. 187; Lore v. State, 4 Ala. 173; Hayes v. State, 107 Ala. 1, 18 So. 172; Gunter v. State, 83 Ala. 96, 3 So. 600; Waller v. State, 40 Ala. 325. The indictment placed title to the merchandise in J. J. McElroy, while the evidence showed title in Mrs. J. J. McElroy. Defendant was thus entitled to the affirmative charge. Johnson v. State, 100 Ala. 55, 14 So. 627; 22 Cyc. 445, 446; 1 Mayfield's Dig. 434, § 16. The defendant was entitled to a responsive verdict on his plea of former jeopardy. Spraggins v. State, 139 Ala. 93, 35 So. 1000; Davis v. State, 136 Ala. 129, 33 So. 818; Moody v. State, 60 Ala. 78; 1 Mayfield's Dig. 491, § 4.
A. A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.
The fact that the solicitor failed to sign the indictment altogether would not affect the same. It is only necessary that it be returned into court marked "A true bill" and indorsed by the foreman of the grand jury. Hughes v. State, 213 Ala. 555, 105 So. 664; Johnson v. State, 19 Ala. App. 308, 97 So. 150; Boyett v. State, 8 Ala. App. 93, 62 So. 984. The bench notes show discharge of the jury by consent of defendant and the State. The court will not go behind this record. But the trial court might have discharged the jury without such consent, and no advantage have resulted to defendant. Ala. Code 1928, § 8696; Spelce v. State, 20 Ala. App. 412, 103 So. 694.
If indeed, as appears, the judge's bench notes on the former trial — the one made the basis of appellant's plea of former jeopardy — show that the jury, on that trial, was discharged, before reaching a verdict, with appellant's consent, his said plea was doomed, in its ultimate analysis, to futility.
So, while conceding technical error in the action of the trial court in granting the State's motion to strike appellant's said plea, it can "avail appellant nothing"; this for the reason, "as the matter appears to us, that the court knew its own records and therefore knew the plea could not be sustained — in fact, the method of arriving at the result being not of controlling importance." See Ex parte Spelce (Spelce et al. v. State) 212 Ala. 559, 103 So. 705.
The fact that the solicitor's name was printed on the indictment returned against defendant (appellant) rather than written was of no moment. It was really immaterial to the validity of the said indictment as to whether or not the solicitor's name was affixed to same at all. Hughes v. State, 213 Ala. 555, 105 So. 664.
"Burglary, like trespass, is an offense against the possession, and hence the test for the purpose of determining in whom the ownership of the premises should be laid in an indictment is not the title, but the occupancy or possession at the time the offense was committed. The ownership should be laid in the occupant at the time the offense was committed, unless the occupant is a mere servant." Adams v. State, 13 Ala. App. 330, 69 So. 357, 358.
The law, as just next hereinabove quoted, renders it apparent that there was no error in refusing to give the written charges (which were refused) requested by appellant.
Likewise, we can find no error in any ruling appearing to have been made anywhere in the proceedings leading to appellant's conviction; and the judgment is affirmed.
Affirmed.