Horton v. The State

Horton v. The State. Indictment for Burglary. 1. Description of building burned; alternative averments. — In an indictment for burglary, a count which describes the building burned as “a barn or stable,” or as “abarn, house, or building,” is fatally defective on demurrer. From the Circuit Court of Madison. Tried before the Hon. Louis Wyeth. The indictment in this case contained three counts ; the first charging that the defendant “did willfully set fire to or burn a barn or stable of James I. Jones and "Willis Blankenship, within the curtilage of the dwelling-house, or other building;” the second describing the house as “a barn, house, or building, the property of” said Jones and Blankenship ; and the third, “a barn or stable, the property of” the same persons. The defendant moved to quash the second and third counts, and also demurred to them, but on what grounds the record does not show. The demurrer and motion were both overruled, and a trial was had on issue joined on the plea of not guilty. There was also a motion in arrest of judgment, but not on account of any defects in the indictment. The overruling of the motion in arrest of judgment, the refusal of several charges asked, to which exceptions were reserved, • and the allowance of eight peremptory challenges to the State, as shown by the bill of exceptions, are now assigned as error. H. Humphrey, and Geo. S. Gordon, for defendant. Brandon & Jones, with John W. A. Sanford, Attorney-General, for the State. [MAJORITY — BRICKELL, C. J.] BRICKELL, C. J. The indictment is insufficient in each count. In the first count, the building burned, or to which fire was set, is described as a barn or stable; in the second, as a barn, house, or building; in the third, as a barn or stable. We have no statute which authorizes such disjunctive averments, and it is plain the common law does not tolerate them. — Norton v. State, 53 Ala. 488. The judgment must be reversed, and the cause remanded ; but the prisoner will remain in custody, until discharged by due course of law.