State v. Buchanan

delivered the opinion of the court.

The indictment charges the appellee with the burglarious breaking and entering of the dwelling house of one T. S. Johnson, “with the wilful, felonious and burglarious intent then and there to commit some crime to the jurors aforesaid unknown.” To this indictment the defendant demurred, assigning, amongst other causes of demurrer, that it charges no crime under the laws of this state; and that it fails to charge the specific crime with intent to commit which the defendant was alleged to have broken and entered the house. The demurrer was by the court below sustained, and from -this action of that court the state appeals, and assigns the same for error.

The crime of burglary consists of two essential elements, viz.: (1) The burglarious breaking and entering of the house, and (2) the felonious intent to commit some crime therein. Both elements must be laid in the indictment, and both must be proved as laid. This is familiar learning, and is not contro*351verted by the attorney-general. His contention is that the charge in the indictment of an intent to commit some crime in the house burglariously broken and entered, is sufficiently specific, and that an intent to commit a named particular felony is unnecessary. But this is unsound, because this general and indefinite averment of an intent to commit some crime, does not advise the accused of the nature and character of the crime, or one of the essential ingredients of the crime, preferred against him. He is left to grope in the dark as to what crime the state may offer evidence to show he intended to commit. Under this very indefinite charge, the prosecution may compel the prisoner to run the gauntlet of all the felonies of the criminal calendar, and rain upon his defenceless head blows from every quarter, in common fairness, every defendant charged with a high crime is entitled to know specifically and particularly what felony is laid to his charge. In this case, the charge preferred was that the accused intended “to commit some crime. ’ ’ What crime ? Larceny ? Nape ? Murder ? Arson ? Poisoning ? How could the prisoner answer ? Or how come prepared to defend? And how could he plead judgment of the court on this vague and indefinite charge to another prosecution for any one of the particular crimes which might have been embraced in this general charge ?

That the indictment is fatally defective cannot be doubted in the light of authority. See Wharton’s Cr. Law, sec. 1614; Bishop’s Cr. Proc., vol. 2, sec. 142; Arch. Cr. Pl. & Prac., Pomeroy’s notes, p. 1102; People v. Nelson, 58 Cal., 104; State v. Lockhart, 24 Ga., 420; Portwood v. State, 29 Texas, 47.

Affirmed.