64 Iowa 39 | Iowa | 1884
“J. A. Donnell,
“Disk Atty. 6th Judicial District of Iowa.”
In a motion for a new trial and in arrest of judgment, the defendants claimed that the indictment was bad for duplicity; and that objection is now urged upon our attention. It is insisted that two crimes are charged in the indictment, — one being the crime of burglary, as defined in seetion 3891 of the Code, and the other the crime of breaking and entering, as defined in section 3894 of the Code. These two sections of the statute, so far as they provide a punishment for breaking and entering dwelling houses in the night time with intent to commit a public offense, are quite similar, and, without the use of some of the qualifying words in section 3894, an indictment under that section would be but little, if any, different in language from an indictment under section 3891. But in this case the pleader unmistakably designates the crime as that provided for in section 3S94, by describing the house as aplace “in which goods were kept for use, sale and deposit.” This language is peculiar to section 3894, and the words unmistakably indicate that the indictment is under that section* and, in order to hold it to be an indictment under the other section, it is necessary to reject these words as surplusage.
Affirmed.