Opinion
4 Div. 813.
February 22, 1944. Rehearing Denied April 11, 1944.
Appeal from Circuit Court, Geneva County; Robt. S. Reid, Judge.
Tom Jake Royals was convicted of bringing stolen property into the State, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Royals v. State, 245 Ala. 677, 18 So.2d 418.
The original affidavit, made before a Justice of the Peace of Geneva County, Alabama, charges that defendant "did fraudulently bring into the State of Alabama, one hog of the value of twenty dollars, which he knew to have been stolen in the State of Florida, in said county, against the peace and dignity of the State of Alabama."
The complaint filed in the Circuit Court is as follows:
"1. That within twelve months prior to the execution and issuance of the affidavit and warrant in this case Tom Jake Royals fraudulently brought into this State and County one hog of the value of $20.00, which he knew was stolen in the State of Florida.
"2. That within twelve months prior to the execution and issuance of the affidavit and warrant in this case Tom Jake Royals fraudulently brought into this State and county one hog of the value of $20.00, the personal property of Otis Ganey, alias D.O. Ganey, which he knew was stolen in the State of Florida.
"3. That within twelve months prior to the execution and issuance of the affidavit and warrant in this case Tom Jake Royals feloniously took and carried away, in the State of Florida, one hog of the value of $20.00, the personal property of Otis Ganey, alias D.O. Ganey, and brought said hog into the County of Geneva, in this State, against the peace and dignity of the State of Alabama."
Demurrer to the affidavit and to the first count of the complaint was upon the grounds (1) that it states no cause of action; (2) that it fails to charge larceny under the laws of Alabama; (3) that the name of the injured party is not set out; and (4) the property alleged to have been stolen is not sufficiently described.
Mulkey Mulkey, of Geneva, for appellant.
The code form for prosecutions of this kind was not followed. The affidavit was defective in failing to allege the name of the injured party. Code 1940, Tit. 15, § 259(26); Whitehead v. State, 16 Ala. App. 427, 78 So. 467. It is not enough that the affidavit followed the statute prescribing the offense. Code, Tit. 14, § 337. When injury to person or property of another is the offense charged a material and essential averment is the identity of the person injured. Lashley v. State, 28 Ala. App. 86, 180 So. 720; Id., 236 Ala. 28, 180 So. 724; Morningstar v. State, 52 Ala. 405. Counts 2 and 3 set forth the name of the injured party, but these counts are a departure from the original affidavit and should have been stricken on motion. Green v. State, 22 Ala. App. 56, 112 So. 98. The initial affidavit is not merely irregular but void, and conferred no jurisdiction. The statute of limitations as for misdemeanor has perfected a bar, and defendant should be discharged. Slater v. State, 230 Ala. 320, 162 Ala. 130; Butler v. State, 130 Ala. 127, 30 So. 338.
Wm. N. McQueen, Acting Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.
It is not necessary to allege the name of the owner of stolen property brought into this State. Whitehead v. State, 16 Ala. App. 427, 78 So. 467; Turner v. State, 124 Ala. 59, 27 So. 272; Bowen v. State, 106 Ala. 178, 17 So. 335; State v. Adams, 14 Ala. 486; Foster v. U.S., 4 F.2d 107; Holt v. State, 28 Ala. App. 219, 181 So. 514; Dutton v. State, 25 Ala. App. 472, 148 So. 876. Counts 2 and 3 of the complaint do not vary from the charge laid in the original affidavit. Freeland v. State, 26 Ala. App. 74, 153 So. 294; Nailer v. State, 18 Ala. App. 127, 90 So. 131; Miles v. State, 94 Ala. 106, 11 So. 403; Whitehead v. State, supra. The Code form was that prescribed before the statute was changed. Code 1886, § 3793; Code 1907, § 7328; Code 1923, § 4911; Code 1940, Tit. 14, § 337. Cases decided prior to 1907 are not apt.
Prosecution was begun in the Inferior Court of Geneva County by an affidavit and warrant of arrest. The affidavit followed the language of Code 1940, Tit. 14, Sec. 337, viz.: "Any person who fraudulently brings into this state any personal property which he knew was stolen elsewhere, shall, on conviction, be punished as if he had stolen it in this state." The affidavit was sufficient to charge the offense denounced. Whitehead v. State, 16 Ala. App. 427, 78 So. 467.
Upon appeal to the Circuit Court the Solicitor filed a complaint in three counts. One count was in the words of the original affidavit; and two additional counts gave the name of the person from whom the property was stolen — one of same naming appellant as the thief.
Appellant admits here, as well he might, that the testimony made a jury question as to his guilt as charged.
But he complains that his demurrer to the first count of the complaint was improperly overruled; and that the court erred in refusing to strike the two other counts as constituting a departure from the offense named in the original affidavit.
In neither of his contentions do we think there is merit. Whitehead v. State, supra; Freeland v. State, 26 Ala. App. 74, 153 So. 294; Code 1940 Tit. 14, Sec. 337.
The case seems to have been fairly and correctly tried, and the judgment is affirmed.
Affirmed.