Opinion
8 Div. 982.
February 16, 1965. Rehearing Denied June 1, 1965.
Appeal from the Circuit Court, Jackson County, Jack Livingston, J.
H.T. Foster and Wm. E. Garner, Scottsboro, for appellant.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
The appellant was convicted of the offense of burglary in the second degree.
The indictment reads:
"The Grand Jury of Said County charge that before the finding of this indictment Alton T. Williams and Jimmie Hugh Smith, whose names to the Grand Jury are otherwise unknown than as stated did, with the intent to steal, break into and enter the Macedonia school building, a school building of the State of Alabama in which merchandise, goods, wares, things of value, were kept for use, sale or deposit, against the peace and dignity of the State of Alabama."
The indictment was not challenged by demurrer or otherwise.
The State has the burden of proving the allegation of ownership of the burglarized building as laid in the indictment. Noojin v. State, 29 Ala. App. 178, 194 So. 414; Anthony v. State, 30 Ala. App. 425, 7 So.2d 513.
State witness, Agee Strickland, testified he was the principal of the Macedonia Junior High School, which is located in Section Route, or Macedonia Community, on Sand Mountain in Jackson County; that he was employed by the Jackson County Board of Education. He was asked: "Q. The Macedonia School Building is the property of the State of Alabama?" He replied, "It is."
The statement of the witness Strickland was the only evidence tending to show the building was the property of the State. This was insufficient to prove the material allegation of the indictment, especially in view of the fact that we are required to take judicial knowledge of the Acts of the legislature and we judicially know that by Sections 71 and 99 of Title 52, Code 1940 the legislature has vested the legal title to school property in county boards of education, except in cities having city school boards. White v. State, 42 Ala. App. 249, 160 So.2d 496.
For the failure of the court to grant the motion for a new trial on the ground of the insufficiency of the evidence to sustain the conviction, the judgment is reversed and the cause remanded.
Reversed and remanded.