Legal Opinion

Gilmore v. State

Supreme Court of Alabama

Decided November 15, 1892PublishedCited by 69 opinions

From the Circuit Court of Pike. Tried before tbe Hon. John R. Tyson. The indictment in this case charged that the defendant, a freedman, “witli the intent to steal, or to commit a rape, broke into and entered the dwelling-house of James E. Moore, in which goods or clothing, things of value, were kept for use, sale or deposit.”

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From the Circuit Court of Pike. Tried before tbe Hon. John R. Tyson. The indictment in this case charged that the defendant, a freedman, “witli the intent to steal, or to commit a rape, broke into and entered the dwelling-house of James E. Moore, in which goods or clothing, things of value, were kept for use, sale or deposit.” On the trial, said James E. Moore testified, on behalf of the prosecution, that his dwelling-house Avas broken into and entered one night in June, 1892; that the house consisted of two rooms, which wero separated by an open hall, or passage-way; that his wife aroused…

1Opinion of the CourtHead, J.

The indictment, which is for burglary of a dwelling-house, contains the unnecessary averment that “goods or clothing, things of value,” were kept in the house for use, sale or deposit. This averment is clearly one descriptive of the house, and though unnecessary to be alleged, yet, being alleged, it became necessary for the State to prove it. There could be no conviction without such proof. Our adjudications are all one way on this point.—Lindsay v. State, 19 Ala. 560; Smith v. Causey, 28 Ala. 655; Johnson v. State, 35 Ala. 363, and later cases to same effect. .Under the evidence, the jury…

2Cases cited5 opinions

  1. Ex parte AcreeSupreme Court of Alabama · 1879
  2. Salm v. StateSupreme Court of Alabama · 1889
  3. Johnson v. StateSupreme Court of Alabama · 1860
  4. Smith v. CauseySupreme Court of Alabama · 1856
  5. Lindsay v. StateSupreme Court of Alabama · 1851

3Cited by69 opinions

  1. Wilson v. StateSupreme Court of Alabama · 1942
  2. Cox v. StateSupreme Court of Alabama · 1967
  3. Pickens v. StateSupreme Court of Alabama · 1896
  4. Pope v. StateSupreme Court of Alabama · 1911
  5. Collins v. StateCourt of Criminal Appeals of Alabama · 1979

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