
    Young v. The State.
    
      Indictment for Burglary in a Dwelling House.
    
    
      1. Burglary in a dwelling house; ownership.—In an indictment for burglary in a'dwelling house the legal title to which is in the wife, but which is actually occupied at the time of the burglary by the husband and wife_, the ownership of the house may be laid in either the husband or wife.
    Appeal from the Circuit Court of Wilcox.
    Tried before the Hon. John Moore.
    The defendant was tried under an indictment which charged him with breaking and entering the dwelling house of Lucius Starr with intent to steal. On the trial the testimony showed the legal title to the dwelling house to be in the wife of said Stair at the time of the burglary, and that the house was then actually occupied by the husband and wife. The defendant moved the court for his discharge because there was a variance between the allegation and the proof as to the ownership, which motion was refused by the court and to such refusal the defendant duly excepted. The court charged the jury, among other things, that the ownership of the dwelling was properly laid in the name of Lucius Starr, notwithstanding the legal title was in his wife, to which charge the defendant excepted.
    The defendant then requested the following charge : “If the jury believe the evidence they must find the defendant not guilty,” and upon the refusal of the court to give such charge the defendant duly excepted.
    Wm. L. Martin, Attorney-General, for the State.
   COLEMAN, J.

The defendant was indicted for burglary of a dwelling house. The ownership of the dwelling house was laid in the husband. The evidence showed the legal title to be in the wife. It was occupied at the time of the burglary by the husband and wife as their home. Actual occupancy of the dwelling by the husband with the wife, and the right to such use and occupancy, is sufficient to justify the laying of the ownership in the husband. Though the legal title is in the wife, it is also his dwelling house.—State v. Trapp, 43 Amer. Rep. 614. The ownership might have been laid in the wife also. The case is different when a party is charged with larceny. The possession of personal property belonging to the wife is referable to the ownership, or legal title, and is distinct and entire, independent of the husband.—Rollins v. The State, 98 Ala. 79; Johnson v. The State, ante p. 55.  