31 W. Va. 355 | W. Va. | 1888
At a Circuit Court held in March, 1888, in Wirt county, the defendants, David Hupp and “Bud” Morris, were, as the finding stated, indicted for felony. The indictment is as follows:
“ The grand jurors of the State of West Virginia, in and for the body of the county of Wirt, and now attending the said court, upon their oaths present that David Hupp and Bud Morris, on the - day of August, 1887, in the said county, a certain out-house and cellar not adjoining to nor occupied with the dwelling-house of J. W. Hale, there situate, in the night-time feloniously did break and enter, with intent the goods and chattels of the said J. W. Hale in the outhouse and cellar then and there being feloniously to take, steal, and carry away, and one keg of wine, of the value of fifteen dollars ($15.00.), of the goods and chattels of the said J. W. Hale in the said out-house and cellar then and there being found, then and there feloniously did take, steal, and carry away, against the peace and dignity of the State.”
On the 28th day of March, 1888, the defendants pleaded not guilty to the indictment, and a jury was impanelled and sworn to try the issue, and on the same day returned a, verdict. as follows : “ We, the jury, find the defendants, David Hupp and Bud Morris, guilty as charged in the within indictment.” The defendants, by counsel, moved in arrest of
The question here presented is: Was the court authorized to render the judgment and sentence it did upon the verdict? The verdict is, in general terms, that the defendants were guilty as charged in the indictment. With what were they charged in the indictment? Was- it for felony or misdemeanor? It was evidently intended by the indictment to charge “ house-breaking,” which is a felony. In order to charge “ house-breaking,” all the authorities agree that the indictment shall allege the ownership of the house which has been broken into. 1 Whart. Crim. Law, § 816; Webster's Case, 80 Va. 598; Butler's Case, 81 Va. 162. In these two cases it is held that an indictment charging that “the prisoner,” etc., “a certain mill-house not adjoining to or occupied with the dwelling-house of A.,” etc., sufficiently alleges the ownership of the mill-house to be in A., and is sufficient in law. The indictment in Speer's Case, 17 Grat. 570, is referred to in both the late Virginia cases. But Speer's Case is no authority, because the point was not in that case raised or considered. It is true that the indictment in that case contains the same defect we find in the one before us, but the court took no notice of it whatever.
The attorney-general calls attention to the fact that the form of the indictment in this case is taken from Mayo’s Guide, 357, and has long been in use in Virginia and this State; and its validity, as to alleging ownership of the property, has never been questioned until Reece's Case, 27 W. Va. 375, and the late Virginia cases already cited. This argument can have but little weight, unless there is ambiguity in the language used. It will not do to say that it was intended by this language to charge the ownership in the property entered as the same as that of the dwelling-house not adjoining and not occupied with it. The question still recurs: Hoes it so charge?
The judgment of the Circuit Court is reversed and the case remanded to the Circuit Court of Wirt county for judgment to be entered on the verdict of the jury.
Reversed. Remanded.