43 Ark. 345 | Ark. | 1884
The appellant was indicted for burglary under section 1348 of Gantt’s Digest. The offense is charged to have been committed by breaking and entering iuto “ an out house commonly known as a sample room.” It is urged that the indictment is in sufficient because :
1. It does not charge the offence in the language of the statute, but in place of the statutory words “ willfully and maliciously and with force break and enter” it substitutes the words “ feloniously, willfully and burglariously did break and enter.”
The offence alleged in the indictment is created by the statute and it is required that the charge should be laid in the exact words of the statute or in others that convey an equivalent idea. It is sufficient if every particular element that enters into the crime is covered by the words of the indictment.
Bishop says that “ maliciously ” in an indictment has been adjudicated an equivalent to “ willfully ” in the statute. “ Maliciously” is of somewhat larger meaning than “ willfully,” which in an indictment would not therefore supply the place, it is presumed, of maliciously in the Statute.” 2 Bish. Cr. Pr. Sec. 43.
The terms used in this indictment would be sufficient for the common law offence, and we think they adequately describe the statutory crime.
The word “ maliciously ” was used in the Ohio Statute as in ours, but we are not aware that it was e^er held to change any of the settled rules of burglary, though it was there very properly incorporated into their precedents for indictments.
Where larceny is the crime intended, it is generally held that something more specific than the mere name of the felony must be given, though some courts have held that no more is required. People v. Shater, 32 Cal., 36; Wicks v. State, 44 Ala., 398.
In case of arson there is obviously less necessity to particularize, and it is apparent that any person of common understanding would be apprised by the allegation quoted of what was intended thereby.
Exceptions were taken to the court’s charge to the jury, but they are not urged here and we are unable to discover errror therein.
“ One of the material allegations in the indictment is that the house described therein is an out house, and I further charge you that in contemplation of law an out house is one of a cluster of buildings connected with a building, and not separated from it by a highway, and unless you find that both have been pi’oven beyond a reasonable doubt, you will acquit the defendant.”
Any house under our Statute comes within the prohibition against burglary and arson, and it was not proper to define an out house as one within the curtilage as the appellant’s prayer for instruction implies. The proof showed that the house was contigous to and used in connection with a hotel, the two belonging to and being controlled b'y the same person. This was enough to make it an out house. Bishop St. Cr. Sec., 291.
Finding no error in the record the judgment is affirmed