The indictment contained three counts. The first charged burglary of a dwelling house; the second charged larceny of certain articles from the dwelling house; the third charged that the defendant did buy, receive, conceal, or aid in concealing one pistol, one flashlight, and one box of cartridges, knowing that these articles were stolen from a dwelling house, and not having the intent to restore them to the owner.
The demurrers to count 1 of the indictment were properly overruled, as an indictment for burglary in a dwelling house need not allege that goods, wares, or merchandise, or other valuable things were kept *Page 551 for use, etc.; such words applying only to the buildings or structures named in the second clause of section 6415 of the Code 1907. Potter v. State, 92 Ala. 37, 9 So. 402; Gilmore v. State, 99 Ala. 154, 13 So. 536; Matthews v. State,15 Ala. App. 670, 74 So. 759. An averment of this character, if made, would be descriptive of the house, and, though unnecessary to be alleged, yet if it is alleged it would be necessary for the state to prove it. Lindsay v. State, 19 Ala. 560; Johnson v. State, 35 Ala. 363, and numerous later cases to the same effect.
The defendant entered a plea of not guilty to the indictment as a whole; the trial was had upon these issues, and resulted in a verdict by the jury of "guilty as charged in the third count of the indictment," and sentence was entered thereon accordingly. This verdict and judgment operated as an acquittal of the defendant of the offense of burglary as charged in the first count, and of grand larceny as charged in the second count.
As several rulings of the court complained of related only to the issues involved under the first and second count, and as the defendant was acquitted of the charges under these counts, there appears no necessity for this court to consider these questions.
The court refused, among others, the following charge:
"(4) The court charges the jury that, if you believe the evidence in this case, you cannot convict the defendant under the third count of the indictment."
As there was no evidence whatever in the entire record to sustain the allegations of the third count, and no facts from which the guilt of the defendant in this regard could even be inferred, the charge should have been given, and its refusal was error. James v. State, 15 Ala. App. 569, 74 So. 395; Jeffries v. State, 7 Ala. App. 144, 62 So. 270; Thomas v. State, 109 Ala. 25, 19 So. 403; Sanders v. State, 167 Ala. 85,52 So. 417, 28 L.R.A. (N.S.) 536; Aline Clisby v. State, ante, p. 475, 86 So. 140; Jordan v. State, 87 So. 433.
As to the charges contained in the first and second counts of the indictment, there was some evidence, though slight, which authorized the court in submitting the case to the jury on those counts, but, as before stated, there is not a scintilla of evidence to sustain the allegations of the third count, or any testimony offered from which the guilt of the defendant under this charge could even be inferred. There was no attempt to show that the defendant bought the stolen articles, or that at any time he received them or even had them in his possession, nor was there any evidence whatever to sustain the charge that he concealed, or aided in concealing, the articles named, knowing that they were stolen. This being true, the verdict of the jury was manifestly contrary to any of the evidence in the case, and was therefore not predicated upon the evidence or any part thereof. All these questions were fully presented on the motion for a new trial, and the court erred in overruling said motion. It is our opinion that the defendant, under all the evidence in this case, and under every inference possible to deduce therefrom, was entitled to his discharge under count 3 of the indictment.
For the errors pointed out, the judgment of the circuit court is reversed and the cause remanded.
Reversed and remanded.