State v. Morrissey

The indictment in this case is based upon Eevision, § 4235 (2611). “ If any person, with intent to commit a felony, in the day-time break and enter, or, in the night-time, enter without breaking, any dwelling-house ; or at any time break and enter any office, shop, store, warehouse, boat or vessel, or any building in which any goods, merchandise or valuable things are kept for usey sale or deposit, he shall be punished by imprisonment in the penitentiary, not more than ten years, or by fine, not exceeding five hundred dollars, and imprisonment in the county jail not more than one year.” The charging part of the indictment is as follows: “The said James Morrissey, heretofore, to wit, on the eighth day of September, A. D. 1866, in the county aforesaid, at the city *159of Dubuque, feloniously did break and enter a barn there situate, with intent feloniously to steal, take and carry away harness, saddle, bridles and other valuable things then and there being kept for use, of the goods and chattels of James Donellan, then and there being.” The defendant plead not guilty, and thereon a trial was had to a jury, which resulted in a verdict of guilty. After the verdict was returned into court, the defendant moved in arrest of judgment, for the reason “ that the indictment does not allege whose barn it was that defendant is accused of breaking and entering.” This motion was overruled, and judgment was entered and sentence passed upon the defendant, from which he appeals. The overruling of this motion is the only alleged error.

Our statute provides that a motion in arrest shall be granted for any cause which would have been ground of demurrer. Rev., § 4856.. It is further provided that in an indictment, when material, the name of the person injured, or attempted to be injured, be set forth, when known to the grand jury, or, if not known to it, that 'it bé so stated (Rev., § 4659, subd. 6); and that a defendant may demur when the indictment does not substantially conform to this and other requirements of Revision (ch. 199, §4707).

Criminal law: burglary. The first inquiry, then, is, whether the name of the person injured is material, in charging the offense specified in section 4235, supra. And upon this q uestion , , A there does not appear to be any conflict of authorities. The name of the person injured, in burglary and kindred offenses like this, is uniformly held to be material, and, of the correctness of this holding, we have no doubt. Willis v. The People, 1 Scam. (Ill.), 399; Commonwealth v. Williams, 2 Cush., 582; Spencer v. The State, 13 Ohio, 401; Putcher v. The State, 18 Ohio, 308.

The only other question is, whether this indictment *160does give tbe name of the person injured. That is, whether the person injured' is the owner of the barn, or the owner of the property which the defendant feloniously intended to steal from the barn. And upon this question there is but little room for controversy. The person injured must be the person whose property is actually affected by the act of the defendant, and not the person whose property was only intended to he affected. In other words, no injury results to the owner of the harness, etc., by the intent of the defendant to steal them; hut the injury results alone to the owner of the barn which was actually broken and entered. The name of the owner of the harness, etc., it was not necessary to set out in the indictment, since he was not injured; but tbe name of tbe owner of tbe barn, he being 'tbe person injured, was material, and should have been set out, if known, and, if not known, then it should be so stated.

It follows, therefore, that the court erred in overruling defendant’s motion in arrest, and, for this error, the judgment is reversed, and the case remanded for a new trial.

Preliminary to such new trial, the cause may be re-submitted to another grand jury, as provided in the Revision, sections 4698, 4712.

Reversed.