Opinion
6 Div. 434.
August 13, 1957.
Appeal from the Circuit Court, Jefferson County, Burgin Hawkins, Special Judge.
John Ike Griffith, Birmingham, and Verbon E. Owen, Cullman, for appellant.
There was a fatal variance between the indictment and the proof as to ownership of the property, and the conviction cannot stand. Morrow v. State, 23 Ala. App. 452, 126 So. 887; Booker v. State, 24 Ala. App. 179, 132 So. 70; Rather v. State, 24 Ala. App. 452, 136 So. 483; 42 C.J.S. Husband and Wife § 625, p. 267; Jetton v. State, 29 Ala. App. 134, 195 So. 283, Id., 239 Ala. 306, 195 So. 284; Buckley v. State, 19 Ala. App. 508, 98 So. 362.
John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for the State.
In larceny prosecution ownership of alleged stolen property is properly laid in person who was in rightful possession. Williams v. State, 5 Ala. App. 112, 59 So. 528; Gandy v. State, 35 Ala. App. 299, 46 So.2d 247.
Peek was convicted by a jury in the Jefferson Circuit Court of grand larceny. The indictment laid the ownership of the property alleged to have been stolen in Mamie Bice. The undisputed testimony of Mamie Bice and Roxie Roberts, as witnesses for the State, was that the latter was the owner of the property, nor was there any evidence as to any special property or claim in the alleged owner as there was in a bailee in Gandy v. State, 35 Ala. App. 299, 46 So.2d 247. The two women were sisters who shared an apartment. The defendant entered the apartment after having been given a key by one sister so he could watch television while waiting for the other sister to come home from her work.
The allegation as to who was the owner was material, since consent of the owner can be a defense. Hearn v. State, 158 Ala. 47, 48 So. 344; see also Stuckey v. State, 28 Ala. App. 83, 180 So. 116; Weatherly v. State, 33 Ala. App. 127, 30 So.2d 484; 32 Am.Jur., Larceny, § 146; 52 C.J.S. Larceny § 99, c. (1), p. 918.
Written requests for the affirmative charge as to each of the two counts having been made, their refusal was error.
The judgment is reversed and the cause remanded.
Reversed and remanded.