Opinion
7 Div. 759.
April 18, 1944.
Appeal from Circuit Court, Etowah County; J.H. Disque, Jr., Judge.
Bobbie Lee McWilliams was convicted of grand larceny, and he appeals.
Affirmed.
Roy D. McCord, of Gadsden, for appellant.
The indictment is fatally defective and will not support the judgment of conviction. To charge an offense against property, defendant's ownership must be negotiated by showing ownership in another. The ownership in this case is alleged to be in Brackin jewelry, which is not sufficient. Code 1940, Tit. 14, § 331; Emmonds v. State, 87 Ala. 12, 6 So. 54; Jetton v. State, 29 Ala. App. 134, 195 So. 283; Webb v. State, 11 Ala. App. 306, 66 So. 870; Grattan v. State, 71 Ala. 344; Noah v. State, 15 Ala. App. 142, 72 So. 611. This defect will be noticed though not brought to the attention of the trial court. Raisler v. State, 55 Ala. 64.
Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.
Indictment in form prescribed by Code is sufficient. Code 1940, Tit. 15, § 259(66); Marshall v. State, 18 Ala. App. 526, 93 So. 380; Flott v. State, 24 Ala. App. 584, 139 So. 298. A person may adopt what name he pleases, and if he deals with others or goes to court under that name, no harm is done and no one whom he litigates can complain. Milbra v. Sloss-Sheffield S. I. Co., 182 Ala. 622, 62 So. 176, 46 L.R.A., N.S., 274; 38 Am.Jur. 600; Alabama Clay Prod. Co. v. Mathews, 220 Ala. 549, 126 So. 869; National L. A. Ins. Co. v. Saffold, 225 Ala. 664, 144 So. 816; Jordan Undertaking Co. v. Asberry, 230 Ala. 97, 159 So. 683; Washington v. State, 68 Ala. 85.
Appellant was convicted of the offense of grand larceny. Code 1940, Tit. 14, Sec. 331.
The appeal is on the record proper, without bill of exceptions. The record is regular in all respects.
The indictment, which consisted of but a single count, was laid in exactly the form prescribed by Code 1940, Tit. 15, Sec. 259, first paragraph, form 66. No demurrer was interposed to same.
Now, after conviction, and upon appeal, appellant contends that the indictment was void. This, because, he says it alleged that the property feloniously taken and carried away — stolen — was "one diamond ring, of the value of $37.50, the personal property of Brackin jewelry." And he says Brackin jewelry is not the name of a person, partnership, or corporation — in short, that it is the name of nothing.
But we do not know that. Neither could the court below.
The indictment alleged that the property stolen was the "personal property of Brackin Jewelry" — thus clearly indicating to the ordinary mind that Brackin Jewelry was a person.
The words Brackin Jewelry could well designate a person — though we might suspect they do not. Many names of persons ending in "ry" occur to us; and many more unusual names of persons than "Jewelry" are everywhere apparent. "Leg," "Foot," "Moon," are not uncommon names of persons. And we once knew an estimable gentleman by the name of "Summer Day."
So appellant, if indeed there was a defect in the designation of the party from whom it was alleged he "stole the ring", could not go to trial without objection and then, after conviction, expect relief from us in an appeal on the bare record.
The judgment is affirmed.
Affirmed.