Hunter v. State

29 Ind. 80 | Ind. | 1867

Gregory, J.

The affidavit on which the information was based charges that the defendant, on, &c., at, &e., “ did then and there, in the night time, feloniously and burglariously break and enter into theJ storehouse of [.Harvey W. Can-, used and occupied as a drug store by] Edward D. Beher, then and there situate, with intent the goods and chattels of the said Edward D. Beher, then and there being, then and there feloniously and burglariously to steal, take and carry away.” The information follows the affidavit. To give the Common Pleas Court jurisdiction, it was averred in the information that the defendant was in the Hush county jail, on the charge of said felony, and had not been indicted by the grand jury. Plea, “not guilty.” Trial' by jury; verdict, guilty; motions for a new trial and in arrest overruled, and judgment.

On the trial, the appellant offered to prove1 to= the jury that the words in brackets, in the affidavit, were- interlined after the affidavit was sworn to, and that it was not re-sworn to after the amendment. The court ruled out the evidence offered, and the defendant excepted, and made this action of the court one of the reasons for his motion for a new trial. There was no error in ruling out the evidence. It was a matter with which the jury had nothing- to do. The question before them was guilty or not guilty, as charged in the information. The same thing was relied on in the motion in arrest, but the affidavit showing the fact was not made a part of the record by a bill of exceptions, and is therefore not before us.

It is claimed that the information does not charge that the defendant was in custody on a charge of the same felony. The charge that he was in the Rush county jail, is a charge that he was in custody. It is the kind of custody contemplated hy law.

J. R. Mitchell and B. Smith, for appellant. I). J$. Williamson, Attorney General, for the State.

■ It is urged that the information is defective in not charging that the defendant had not been indicted by the grand jury of Rush county. The charge that he had not been indicted by the grand jury is sufficient.

It is objected to the information that the value of the goods and chattels intended to be stolen is not stated. The crime consists in the breaking and entering’, in the night time, a mansion house, storehouse, manufactory, office, shop, out-house or boat, with intent to commit a felony. The crime is complete without the aetual commission of the felony intended. It is not necessary to state the kind or value of the goods intended to be stolen.

The judgment is affirmed,-with costs.