
    Walker v. The State.
    
      Indictment for Grand Larceny.
    
    1. Indictment for larceny; averment of ownership —An' indiotnjent for the larceny of a part of an outstanding crop of corn from the lands of a'person, who died before the larceny, must allege the ownership in the personal representative -of the decedent; and-when the ownership is laid in his wife, who is the decedent’s personal repre sentative, and his children jointly, it is erroneous.
    Appeal from the Circuit Court of Barbour.
    Tried before the Hon. Jesse M. Carmichael.
    The appellant was tried and convicted under the following indictment: “1. The grand jury of said county charge that before the finding of this indictment that Levi Walker feloniously took and carried away one hundred ears of corn of the value of forty cents, being apart of an outstanding crop of corn, the property of Carrie Jennings, Bart Jennings, Henry Jennings, Maggie May Jennings arid Carrie Lee Jennings.
    
      “2. The grand jury of said county further charge that before the finding of this indictment Levi Walker feloniously took and carried away one hundred ears of. corn of the value of forty cents, being a part of an outstanding crop of corn, the property of Charley Vinson, against the peace and dignity of the State of Alabama.”
    The State introduced evidence tending to show that the defendant was guilty of the larceny of the corn from the field which was owned by one B. H. Jennings, during his life time. The State introduced one Charley Vinson, as a witness, who testified that he had charge of the plantation from which the corn was alleged to have been stolen during the year 1895 as overseer for B. H. Jennings ; that the corn was taken from the field the last part of September, 1895 ; that Mr. Jennings, the owner of the property, died in the middle of September, 1895, and that he, Vinson was in charge of the plantation as his overseer at that time. It was shown that B. H. Jennings left surviving him his wife, Mrs. Carrie Jennings, and the other persons named in the first count of the indictment as his children, and that Mr. Jennings was dead when the corn was taken. It was further shown that letters of administration were granted Mrs. Carrie Jennings on the estate of B. H. Jennings on October 4, 1895, prior to the finding of the indictment. The defendant introduced evidence tending to show that he was not guilty of the offense charged in the indictment.
    Upon the introduction of all the evidence, the court instructed the jury as follows : "The court charges the jury that if they believe beyond a reasonable doubt that the lands upon which the corn in question was grown were the lands of B. H. Jennings at the time of his death, and he departed this life leaving surviving him his wife and four children, and there was no administration, then the crop was the property of Mrs. Jennings and her children.” To the giving of this charge the defendant duly excepted, and also excepted to the court’s refusal to give the following written charge asked by him : “If the jury believe the evidence in this case, they must acquit the defendant.”
    No counsel marked as appearing for appellant.
    William O. Fitts, Attorney-General, for the State.—
    The first count in the indictment and the one under which the conviction was secured laid the ownership of the outstanding crop in the widow and minor children. The correctness of this allegation of ownership under this particular state of facts is the sole point presented by the record. As to the correctness of which there seems to be no doubt, and the judgment should be affirmed. Clark’s Man. Crim. Law, 169; Dreyer v. State, 11 Texas App. 503; Louisiana v. Hanks, 39 La. Ann. 235.
   BRICKELL, C. J.

Corn,cotton,and other like crops, not the spontaneous growth of the earth, produced annually'by labor and industry,are known as emblements, and on the death of the occupier of the land, whether he be the owner of the inheritance or of an estate terminating with his life, pass to his personal representative.— 1 Williams Ex’t’rs, 710. It is a well known rule of criminal pleading, that when it becomes necessary to a.ver the ownership of property which resided in one dead, while living, if it be personal property, passing to the personal representative, of which he has custody, actually or constructively,the ownership must be hid in him. If real property, then in the heir or de.visee, and it is generally sufficient to aver it in the actual possessor.

The title of the personal representative relates to the death of the decedent, and he may maintain.suits against those who have taken or converted the goods of the decedent in the interim between his death and the grant of administration. — Upchurch v. Norsworthy, 12 Ala. 552; s. c. 15 Ala. 705. Though the corn may have been-stolen after the death of the owner of the lands, and before the grant of administration, the ownership would have been properly laid in the personal representative subsequently appointed; title to it vested in her by relation. And it could have been laid in her as the possessor, she succeeding to the possession of her late husband. But laying the ownership in her and her minor children jointly, was erroneous ; they did not have any joint possession — the possession devolved on the mother only. Brown v. Beason, 24 Ala. 466. If the ownership is laid in several persons as joint owners, a joint ownership must be proved; it is not sufficient to prove that it is in a less number than charged. — Parmer v. State, 41 Ala. 416. It results the court below erred in the charge given, and in the refusal of the charge requested.

The judgment is reversed and the cause remanded. The defendant will remain in custody until discharged by due course of law.  