
    Jefferson v. The State.
    
      Indictment for Larceny from a Store-house.
    
    1. Section 3789 of the Code; definition of store-house.—A store-house within the meaning of § 3789 of the Code is “a house in which things are stored; a building for the storing of grain; food-stuffs or goods of any kind, a magazine, a repository, a warehouse, a store.”
    2. Same; conviction for grand larceny can only be supported where the bxtilding was in use at'the time as a store.—A conviction for grand larceny cannot be had under an indictment based on § 3789 of the Code unless the house or building in wnich it is charged the defendant committed the larceny was a store-house-when the alleged crime was committed, whatever may have been the use for which it was constructed; it is indispensable to a .conviction of the higher grade of the crime that at the very time it was committed the building should have been in use as a store-house.
    3. Same; general charge.—Where under an indictment under § 3789 of the Code there are two counts, both charging larceny from a storehouse, the evidence shows that the building in which the larceny is chaged to have been committed, although constructed for a storehouse, was at the time the offense was committed in use, in part, by a firm engaged in the real estate and insurance business, and, in part, by a building and loan association and as a lumber broker’s office, and that no goods, wares, merchandise or grain were kept in such building for use, sale or deposit, the general charge asked by defendant should be given.
    From tbe City Court of Montgomery.-
    Tried before tbe Hon. Thos. M. Arrington.
    Tbe defendant was indicted for larceny of money from- a ,store-bouse. Tbe building in wbicb tbe larceny was committed'was at the time occupied and used by the firm of Chandler & Jones in carrying on a real estate and insurance business, and by the Standard Building and Loan Association and also by a lumber broker. No goods, wares, merchandise or grain ivere kept in the building for use, sale or deposit, but the building was constructed for a stoi’e-house. The defendant moved to exclude from the consideration of the jury the evidence of the witnesses as to the larceny, on the ground that the place from which the money was taken was not a store-house as charged in the indictment. The court overruled the motion and the defendant duly excepted. Two of the witnesses for the State having testified that the building was a store-house, the defendant moved the court to exclude that part of their testimony from the jury on the ground that it was merely the opinion of the witnesses, and that the use to which the building was put showed it was not a store-house. The court overruled this motion and the defendant duly excepted. The defendant requested the court to give the following charge : “If the jury believe the evidence they must find the defendant not guilty.” The court refused to give this charge, and to this action of the court the defendant duly excepted.
    John G. Einley, attorney for the appellant.
    Wm. L. Martin, Attorney-General, for the State.
   STONE, C. J.

Defendant was indicted under section 3789 of the Code of 1886. The indictment has two counts, each charging larceny of money from a store-house.

Store-house is “ a house in which things . are stored; a building for the storing of grain, food-stuffs, or goods of any kind, a magazine, a repository, a warehouse, a store.” Century Dictionary, Webster’s Dictionary, Worcester’s Dictionary. This is, in substance, the definition given to the word store-house in State v. Sandy, 3 Ire. law, 570, and in Ray v. Com., 12 Bush., 397. Johnson v. State, 19 Ala., 527, is not opposed to this view.

The house or building in which it is charged the defendant committed the larceny for which he was indicted, whatever may have been the use for which it was constructed, was in no sense a store-house when the alleged crime was committed. The statute aggravated the offense and increased the punishment because of the place of its commission ; and to justify a conviction of the higher grade of the crime, it was indispensable that at the very time it was committecl, the building should have been in use as a storehouse. The general charge asked by defendant, that if the jury believed the evidence they must acquit him, ought to have been given. There can be no conviction under the indictment as framed, on the testimony shown in this record.

Reversed and remanded.  