3 Wash. 131 | Wash. | 1891
The opinion of the court was delivered by
Appellant was tried and convicted in the court below of the crime of burglary. The information on
“ The said William Miller, on the twenty-fourth day of May, A. D. 1890, in the county of King, in the state aforesaid, then and there being about the hour of four o’clock in the forenoon of said day, a certain house then and there used and conducted by N. A. Landon and Alameda C. McConnell, co-partners, under the name and style of H. A. Landon & Co., as and for an hotel and lodging house, and the same being then and there the dwelling house of said H. A. Landon, did willfully, unlawfully, feloniously and burglariously break and enter, with intent to then and there the personal goods and property of William H. Hall and Has Holmer, then and there guests of said H. A. Landon & Co., willfully, unlawfully, feloniously and burglariously steal, take and carry away, contrary to the form of the statute,” etc.
It is contended that none of the essential elements of the crime charged are pleaded; that there are two distinct offenses, either of which are burglary under the statute (Code 1881, § 827); that one is the unlawful entering in the night time, etc., and the other the unlawful breaking and entering in the day time, etc. Conceding the last proposition, this information charges the breaking as well as the entering, and is, therefore, broad enough to cover both offenses described by the statute. If the breaking had not been alleged it might have been necessary to have alleged that it was in the night time, though we do not now pass upon that question. But the breaking having been alleged makes it sufficient to sustain the charge of burglary, either by day or night. It would not be contended that it would be any the less burglary under the statute if the unlawful entry at night was by breaking. There can be nothing in this objection. The statute provides that every person who shall unlawfully enter in thenight time, or shall unlawfully break or enter in the day time, any dwelling house, or outhouses •
It is contended that hotels and lodging houses are not included in the list of houses mentioned in the statute, and that there is no averment in the information that the house which was broken into was a dwelling house, but that it was only mentioned by way of recital. No matter what is said by way of description of the house in the first part of the information, the summing up is in these words, “the same being then and there the dwelling house of said N. A. Landon.” An objection to this phraseology simply amounts to choice of expression: the words “ the same being the dwelling house,” conveys exactly the same idea as the words “the same was the dwelling house.” The form objected to is the form generally used in indictments as laid down by text-books on criminal procedure, and we do not know any court which has held an indictment bad on any such grounds. Certainly the administration of criminal law in this country has not become so hampered with technicalities as to prevent a choice of two expressions which mean the same thing. The code provides (§ 1015) that no indictment shall be held insufficient for any surplusage or redundant allegations. So far as the first part of the description of this house is concerned it could at most only be held to be surplusage even if it followed that a hotel could not at the same time be a dwelling house.
We think the other objections to the information are equally untenable. The refusal of the court to grant a new trial on the ground of newly discovered evidence is also alleged as error. This was a matter in the discretion of the court, and it does not appear that there was any abuse of discretion. An ex parte affidavit of a man who subscribed himself as Edward Yale, and who confessed to
The showing was entirely inadequate. The judgment is affirmed.
Anders, O. J. and Hoyt, Scott and Stiles, JJ., concur.
