| Ill. | May 19, 1884
delivered the opinion of the Court:
Plaintiff in error was jointly indicted and tried with two others, in the circuit court of Christian county, upon a charge of burglary. The indictment contains two counts. The defendants were each convicted upon the second count, and sentenced to the penitentiary. It is sought to reverse this conviction upon the sole ground that the second count of the indictment is bad.
The statute is: “Whoever * * * willfully and maliciously, without force, (the doors and windows being open,) enters into any * * * freight or passenger railroad car * * * with intent to commit * * * larceny, * * * shall be deemed guilty of burglary. ” The count in question, with appropriate introductory matter, charges that plaintiff in error and his co-defendants, “willfully, maliciously, * * * without force, did * * * enter into a freight railroad ear, * * * then and there being open, with intent, ” etc. The only objection made to the sufficiency of the count is, that it fails to say that the doors and luindows were open,—it simply says the cwr was open. This is rather form than substance. We will not say, that had this objection been taken before trial, the circuit court might not have properly sustained it,— of this we express no opinion. But it is not made until after trial, conviction and sentence. The attention of the circuit court does not appear to have been called to this alleged defect, in any part of the proceedings. There was no demurrer to the count, no motion to quash before trial, and no motion in arrest after conviction. It must be presumed, in fin's condition of the record, that the proof on the trial did show that the doors and windows of the car were open at the time of the unlawful entry, otherwise the court would not have entered judgment of sentence upon the verdict. It appears from the whole record that this defendant had satisfactory notice of the matter for which he was to be tried. He could not have been taken by surprise by proof that the doors of the car were open. The offence was sufficiently identified, so that he can never hereafter be called to answer for that felonious entry into that car, upon an indictment saying the doors and windows were open.
We feel it our duty to affirm the judgment in this case.
Judgment affirmed.