McClellan v. State
Supreme Court of Alabama
Appeal from the City Court of Mobile. Tried before the Hon. O. J. Semmes. Willis McLellan was indicted for the larceny of two ■sacks of twine from a store. On the trial the proof was that the twine when taken from the store was not in sacks. The defendant refused to consent that the indictment be amended and he was held to answer a new indictment. The minute entry was in these words, “The goods stolen does not agree with the indictment.”
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Appeal from the City Court of Mobile. Tried before the Hon. O. J. Semmes. Willis McLellan was indicted for the larceny of two ■sacks of twine from a store. On the trial the proof was that the twine when taken from the store was not in sacks. The defendant refused to consent that the indictment be amended and he was held to answer a new indictment. The minute entry was in these words, “The goods stolen does not agree with the indictment.” Another indictment was found to which the defendant pleaded former jeopardy; the State demurred and the demurrer was sustained and the defendant was…
1Opinion of the Court
McCLELLAN, C. J.-
— A former indictment charged the defendant —appellant here — with the larceny of two sacks of twine from a store house. On the trial under that indictment it was shown that the twine was not in sacks when taken by the defendant from the store house, but was put into sacks by the defendant after the caption. This was clearly a variance. The charge was of the larceny of sacks and twine contained in them, or of twine contained in sacks; the proof was of larceny of bundles of twine which had been removed from the sacks in which they were received by the owner of it and of the…
2Cases cited2 opinions
- State v. KrepsSupreme Court of Alabama · 1846
- Coleman v. StateSupreme Court of Alabama · 1882
3Cited by3 opinions
- Allen v. StateCourt of Criminal Appeals of Alabama · 1985
- Johnson v. StateSupreme Court of Alabama · 1901
- Mitchell v. StateAlabama Court of Appeals · 1918