
    
      Rowland v. The State.
    
    
      Indictment for Burglary.
    
    
      1. Buffioienoij of indictmcnt.-In an indictment for burglary in breaking aM entering a cotton-house (Itev. Coae, § 3~395), a count which does not aver that any thing of value was kept in the house at the time is fatally defective on demurrer.
    
    
      2. Gensral verdict of guilty, under indictment containing good and bad connt~. - Under an indictment containing two or more counts, one of which is demur-rable, if no demurrer is interposed to the defective count, and there is a general 
      verdict of guilty, the judgment of conviction will not be reversed on account of the defective count.
    3. Charge to jury, on indictment and trial of two jointly, authorizing conviction of one on proof against the other. — where two persons are jointly indicted and tried, a charge which instructs the jury that if, on the evidence, “they find that the defendants, or either of them," committed the offense charged, “then they must find them, or either of them, guilty as charged,” is erroneous, since it would authorize a conviction of one defendant on proof of the other's guilt.
    4 Burglary; constituents of offense; proof of value. — Under an indictment for burglary in breaking and entering a cotton-house, the prosecution must prove that the cotton in the house was a thing. of value ; and a charge to the jury, as to the constituents of the offense, ignoring the proof of value, is erroneous.
    Fbom the Circuit Court of Q-reene.
    Tried before the Hon. Luther B. Smith.
    The indictment in this case, which was found in April, 1875, contained two counts; tbe first charging that tbe defendants, John Bowland and Thomas McAlpine, “with intent to steal, broke into and entered tbe cotton-house of Hr. Thomas Balt-zell, and stole therefrom one bale of cotton, of value less thán one hundred dollars, the personal property of said Thomas Baltzelland the second, that they broke and entered, with like intent, “the dwelling-house, or house within the curtilage of the dwelling-house, or the shop, store, warehouse, or other building of Thomas B. Baltzell, in which goods, wares, merchandise, or other valuable thing, was kept for use, sale, or deposit, and feloniously took and carried away therefrom one bale of cotton, of value less than one hundred dollars, the personal property of said Thomas Balt-zell.” There was no demurrer to the indictment. The defendants were jointly tried; and each pleaded not guilty. On the trial, the following bill of exceptions was reserved:
    “ The State introduced as a witness one William Baltzell, who testified, that his father, Hr. Thomas Baltzell, some time in the fall before tbe finding of tbe indictment, bad six bales of eotton in a building which, about two years before, bad been used as a store, but bad been since vacant, and had not been used for any purpose until a short time before the alleged breaking, when said six bales of cotton were placed therein for safe-keeping; and that some time in the fall aforesaid, after said cotton had been placed in said house, said house was broken into, and one of said bales, belonging to said Thomas Baltzell, was taken therefrom. To the introduction of this evidence of the breaking and entering into said house, the defendant objected, and, his objection being overruled, he then and there excepted. Said witness further testified, that said bale of cotton, from the marks on the ground and bushes, had been borne by three persons, on a rail, about a half-mile from the house from which it, was taken, two of tbe persons carrying it, and tbe third balancing it on tbe rail, to a cart; that be thence tracked” [it, or them] “to tbe plantation of Bryant Gully, to tbe rear of tbe bouse of tbe defendant McAlpine, who lived on said plantation; that one of tbe tracks of one of tbe said three persons was an impression on tbe eartb as if made by a run-down shoe, or a shoe turned over and worn off on one side; that tbe cart was a new one, and could be easily tracked, because it rested on tbe ground squarely; that be and some others, on the morning nest after tbe breaking, discovered and traced these tracks to tbe bouse of said McAlpine, and, ' on going to tbe gin-house on tbe plantation of said Gully, about an hour by sun, they found tbe defendant and others ginning and packing tbe cotton of said McAlpine; that said bale of cotton was worth about seventy-five dollars, and was never found; and that be, witness,/lid not know whether tbe impression of tbe worn shoe was made by tbe right or left foot. E. E. Shelton, another witness for tbe State, testified to tbe same facts in substance, and said that tbe track was different from ordinary turned-down shoes, not making out tbe full track. Bryant Gully, another witness for tbe State, testified that the said cart belonged to him, and that it was on bis plantation, at said McAlpine’s bouse, on tbe morning after tbe alleged breaking, and was there against bis orders; that tbe defendant Eowland was lame in one leg, from an injury which be bad received, and walked on tbe side of bis foot; that there was a peculiarity about tbe track made by that foot, which would enable him at any time to recognize it; that be could not remember which one of bis legs was thus disabled; that a great many other negroes made tracks which bore a close resemblance to that made by said Eowland, and that be (witness) never saw any of tbe tracks mentioned by tbe other witnesses. McAlpine bad a good character, but there was no evidence as to tbe character of Eowland. This being all tbe evidence in tbe case, tbe court thereupon charged tbe jury, that if they believed from tbe evidence, beyond a reasonable doubt, that the defendants, or either of them, did, in this county, before tbe finding of the indictment, break into and enter a bouse of Thomas Baltzell, where cotton was kept for deposit, with intent to steal, and take therefrom a bale of cotton, the property of Thomas Baltzell, of value worth seventy-five dollars, then they must find the defendants, or either'of them, guilty as charged in tbe indictment. To this charge tbe defendant excepted.”
    Tbe jury returned a verdict of not guilty as to McAlpine, and guilty as to Eowland; and tbe latter defendant alone brings tbe case to this court.
    
      Snedicor & Cockrell, with Watts & Sons, for defendant.
    John W. A. Saneord, Attorney-General, for the State.
   MANNING, J. —

The first count in tbe indictment in this canse is defective, because, though it charges the defendant with breaking into and entering a cotton-house, with intent to steal, it does not aver that there were any goods, wares, merchandise, or any other valuable thing therein. But, as there is no demurrer to this first count,- and the second is sufficient, and the jury found a general verdict of guilty in response to the whole indictment, the judgment will not be reversed for the defect in -the -first count.

The objection to the testimony, that the cotton-house, or building in which the bales of cotton were kept, was, during the fall before the finding of the indictment, broken into, and a bale of cotton taken therefrom, was properly overruled. We do not perceive, and are not informed of, any reason for that objection.

The bill of exceptions contains, according to a declaration in it, all the evidence that was submitted to the jury; and two defendants were indicted and prosecuted in the court below. The judge, in charging the jury, instructed them that, “ if they believed from the evidence, beyond a reasonable doubt, that the defendants, or either- of them, did, in this county, before the finding of the indictment, break into and enter a house of Thomas Baltzell, where cotton was kept for deposit, with intent to steal, and take therefrom a bale of cotton, the property of said Thomas Baltzell, of value worth seventy-five dollars, then they must find the defendants, or either of them, guilty as charged in the indictment.” It is insisted, that this is plainly a charge that one of the defendants may be convicted on proof of the guilt of -the other. Without any distortion of the language, this is literally the import of the instruction. It was excepted to, on behalf of the defendant, at the time.

Of course, it was only by inadvertence, that the intelligent and able judge who presided on the occasion could have put his charge to the jury in that exceptionable shape; and it is difficult to believe that any jury could understand it, positive as it is in expression, according to its meaning, literally. We are impressed, too, with the conviction, that the bill of exceptions does not set out, as it proposes to do, all the evidence in this cause. Unless some particulars are omitted, we can not perceive how the jury, with a correct understanding of their duty under the law, could have rendered a, verdict of guilty against the defendant convicted, or how, if they did, tbe judge could permit it to stand. There was negligence, at least, somewhere. It was not shown that appellant was ever Known to be in possession of any cotton, or that he was in the neighborhood, or even in the county in which the offense was committed, at the time of its commission. But we must take records as the presiding judges cause or permit them to be made up. The charge of the court, as set out, is not correct; and we can not mow that it did not cause injustice.

There is another particular in which the charge was erroneous. Undertaking to set out all the constituents of the offense for which appellant was indicted, it failed to inform the jury that it must appear that the cotton contained in the house broken into was a thing of value. — Danner v. The State; Ike Robinson v. State; Jasper Webb v. State; all in MSS. This defect was not compensated by the reference to an alleged intent of the accused to steal a bale of cotton worth $75. That intent might have existed, without any such bale of cotton being in the house.

The judgment of the court below must be reversed, and the cause remanded. Let the defendant remain in custody, until discharged by due course of law.  