Ex Parte Shoults

MILLER, J. The defendant was tried and convicted on an indictment charging a violation of section 7342 of the Code. It charged him with selling or removing personal property, three mules, with the purpose of hindering or delaying Abraham Bros. Horse & Mule Company, a partnership composed of Henry Abraham, E'dward Abraham, and Albert Abraham, who had a lawful and valid claim thereto under a written instrument,. etc. Under this section (7342) of the Code, the name of the person, natural or artificial, in whose favor the lien on the property sold or removed exists, must be alleged in the indictment. Hill v. State, 78 Ala. 1. Section 7147 of the Code provides: “When any property, upon or in relation to which the offense was committed, belongs to several partners or owners, it is sufficient to allege the ownership to be in any one or more of such partners or owners1.” The indictment averred the name of the holder or owner of the lawful and valid claim on the mules under the written instrument to be “Abraham Bros. Horse & Mule Company, a partnership composed of Henry Abraham, Edward Abraham, and Albert Abraham.” The undisputed evidence show's Abraham Bros. Horse & Mule Company was a partnership composed of Henry Abraham, Abe Abraham, and Alfred Abraham. The indictment not only should allege the name of the holder or owner of the lien or claim on the mules, but there should he proof to ■sustain the averment. The allegation and the proof should correspond. Underwood v. State, 72 Ala. 220; Henderson v. State, 105 Ala. 139, 16 South. 927. In the case of Underwood v. State, Chief Justice Brickell said: “When the ownership is "alleged, a variance between the allegation and the proof entitles the accused to an acquittal, though it will not bar a new indictment describing or averring the ownership properly.” This indictment avers the partnership is composed of three persons, Henry, Edward, and Albert Abraham. The proof shows it was composed of three persons, Henry, Abe and Alfred Abraham. Two of the persons named in the indictment in the partnership are different in name from two of the persons shown by the proof in the partnership. This variance is material, and the proof of the names of the owners of the lien or claim as alleged is necessary. In Parmer v. State, 41 Ala. 418, this court said: “If the ownership is laid in several persons, as joint owners, it is not sufficient to prove that it is in a less number .than charged. * * * Code provides that ownership may be laid in one of several joint owners; but it does not authorize it to be laid in the name of any number of persons, and a convic *600 tion on proof of ownership in any one of them, or in a less number than the whole.” In Walker v. State, 111 Ala. 32, 20 South. 613, this court wrote: “If the ownership is laid in several persons as joint owners, a joint ownership must be proved; it is not sufficient to prove that it is in a less number than charged.” These were cases where the offenses charged were larceny; but they are kindred offenses to the one charged in this indictment. The punishment in this case is the same as if he had stolen the property. Section 7342, Code. In larceny the name of the owner of the property alleged to have been stolen must have been averred; and in this case the name of the owner of the lien on the property sold or removed must be stated in the indictment. The same particularity as to the averment of ownership is required by the statutes as to each offense. Walker v. State, 111 Ala. 32, 20 South. 612; Hill v. State, 78 Ala. 1; Parmer v. State, 41 Ala. 416. The defendant requested the court to give the jury the general affirmative charge with hypothesis. It was in writing. It was refused by the court. This was error. The judgment should be reversed, and for which the writ must be granted. It is true when the defendant asked the court to give this charge the attention of the trial court was not called to this variance in the proof and the allegation by a proper objection to the evidence, in accordance with rule 34 (175 Ala. xxi), so an amendment could be made by the trial court to the pleading to cure the error. Rule 34 has no binding application to the facts of this case. The pleading to be amended here is an indictment. An indictment cannot be amended by a court on application of the state as a matter of right. The court has no right to allow any amendment of the indictment without the consent of the defendant, entered of record. Before an indictment can be amended by the court, the consent of the defendant thereto must he obtained and entered of record by the court. Sections 7155 and 7156, Code 1907; Gregory v. State, 46 Ala. 151; Shiff v. State, 84 Ala. 454, 4 South. 419; Stone v. State, 105 Ala. 60, 17 South. 114. Then, rule 34 has no material bearing in this case, because this is not a question of variance merely, but involves the want of necessary proof to sustain a material averment in the indictment. There is no proof to sustain that averment in the indictment as to two of the names of the persons composing the partnership. The proof contradicts it. Ferrell v. Ross, 200 Ala. 90, h. n. 6, 75 South. 466; Adler v. Martin, 179 Ala. 97, headnote 9, see pages 111-112, 59 South. 597; Steele v. State, 111 Ala. 32, 20 South. 648. The writ of certiorari must be granted because the trial court refused to give to the jury that written charge. It is not necessary for us to pass on the other errors insisted on by petitioner. Writ granted. ANDERSON, O. J., and SAYRE and THOMAS, JJ., concur. McCLELLAN, J., concurs in conclusion. SOMERVILLE and GARDNER, JJ„ dissent.