The indictment is for burglary, averring a breaking and entry, in the first count, “ of the dwelling house of the late Jno. Tate, said house now, and at the time of the offense committed, belonging to the estate of the late Jno. Tate;” and in the second count, it is averred to have been “ the dwelling house of the estate of the late Jno. Tate.” The common law requires that an indictment for burglary must lay with precision the ownership of the house in which the offense has been committed, and the proof must conform to the averment. 2 Lead. Cr. Cases, 53; 2 Bish. Cr. Pr. § § 135-6-7-8; 2 Whart. Am. Cr. Law, § 1555, et seq.; 1 Euss. Crimes, 806. The statutes have not abrogated or modified this rule; on the contrary, the form of indictment prescribed contains an express averment of ownership. E. C. p. 811, form No. 35.
There is no averment of ownership in either count of this indictment. That which is intended as such an averment shows on its face that the ownership is not disclosed. If the person described as Jno. Tate is dead, and that is the intendment, and during life was the owner of the dwelling, on his death it devolved on his personal representatives, heirs, or devisees. Who these are is not averred. In Pleasant v. *462State, 17 Ala. 190, the indictment described the defendant as a slave, “the property of the late William Copeland.” Dargan, C. J., said : “ Is the ownership of the accused sufficiently averred? The allegation is that Pleasant, a slave, c the property of the late William Copeland.’ In the sense in which the adjective late is here used, it means existing not long ago, but now departed this life. This is the meaning all would give it, and no doubt is the meaning intended to be attached to it by the pleader. The accused is therefore alleged to be the property of one not in life. This cannot be, for the dead can own no property. Death strips us of all rights and title to property, and casts them on the living, who alone can own property. The ownership of the accused is therefore not alleged, and the indictment is consequently defective.” It must be observed of this case, that the ownership of the accused, nor his status, was an ingredient of the offense with which he was charged. The only purpose of its averment was, that in the event of conviction, it should be ascertained to whom the State must make compensation for the loss of property on his execution. The house broken and entered must not be the house of the accused, into which he'had the lawful right of entry. The ownership is as essential as the ownership of goods on an indictment for larceny, or on any other indictment for an offense against property. It is a well known rule of criminal pleading, that when it becomes necessary to aver the ownership of property which resided in one dead, while living, if it is personal property, passing to the personal representative, of which he has custody, actually or constructively, the ownership must be laid in him. If real property, then in the heir or devisee; and it is generally sufficient to aver it in the actual possessor. An illustration which clings to the memory of the lawyer, is given by Lord Hale: “ If A, dying, be buried, and B opens the grave in the night time and steals the winding sheet, the indictment cannot suppose them the goods of the dead man, but of the executors, administrators, or ordinary, as the case falls out.” 2 Hale’s Pleas Cr. 181. The indictment was insufficient, and the conviction erroneous. For aught that appears on the face of this indictment, the accused may have been the owner of the dwelling house. He may have been the heir, or devisee, or the personal representative of the deceased, having its possession, and the lawful right of entry. Such a presumption is not excluded by the averments. The cases of Anderson v. State, 48 Ala. 665, and Murray & Bell v. State, Ib. 675, it may be, induced the framing of the indictment in its-*463present form. These cases cannot be supported on principle or precedent, and are introductive of a laxity in criminal pleading that ought not to be tolerated, and are consequently overruled.
The judgment is reversed and the cause remanded, but the prisoner will remain in custody until discharged by due course of law.