State v. Simpson, 32 Nev. 138

32 Nev. 138 | Nev. | 1909

By the Court,

Norcross, C. J.:

The appellant was convicted of the crime of housebreaking upon an indictment charging that the said defendant on the 18th clay of July, 1908, or thereabouts, at the County of Esmeralda, did then and there in the daytime enter the dwelling-house of John Doyle, and occupied by said John Doyle, with the intent then and there, and in said dwelling-house, to steal the goods and chattels of the said John Doyle situate and being therein. From the judgment of conviction and the order denying his motion for a new trial, the said Simpson appeals.

There was proof showing, or tending to show, that the appellant herein entered the dwelling-house occupied by the said John Doyle and his wife, and while therein opened the trunk of the said Mrs. Doyle, and was engaged in going through the same when frightened away by the return of Mrs. Doyle. It is contended by counsel for appellant that there is a fatal variance between the allegation in the indictment and the proof, in that there was no evidence that the defendant in any way disturbed any property belonging to the said John Doyle¡ and hence no evidence of an intent to steal the property of the said John Doyle. The attorney-general in his brief has cited authorities which he contends supports the position that, even though it were necessary to establish ownership of property in the said John Doyle, the fact that he was in the occupancy and control of the building was sufficient to make him in law a bailee of all of the property situate therein, and that as such bailee he would be regarded as having sufficient title to the property to support an allegation of ownership thereof for the purposes of the indictment. In the case of Kidd v. State, 101 Ga. 528, 28 S. E. 990, the court said: "It is not essential that an indictment for burglary, which charges that the accused broke and entered a house with intent to commit a larceny therein, should distinctly describe the larceny in question. * * >:< In the present case it was alleged that the goods which the accused intended to steal belonged to the prosecutor, and the proof showed that the title to the same was in his wife. We do not think this constituted a variance between the allegata and the probata. It did appear that the goods were in the possession of the husband and under his custody and control; and according to the principle laid down in Goode v. State, 70 Ga. 752, this ivas sufficient to authorize the allegation that the goods belonged to the prosecutor;’

The statute under which the defendant was convicted provides: "Every person who, in the daytime, shall enter any dwelling-house, * * * with intent to steal, or to commit any felony whatever therein, is guilty of housebreaking. * * *” (Comp. Laws 4713.) It is unnecessary, under this statute, to specifically allege ownership of property, and such allegation in the indictment may be rejected as surplusage. The offense is complete when the house or other building is entered with the specific intent designated in the statute. The actual stealing or attempt to steal property therein is only evidentiary of the criminal intent. "When it is necessary to allege the ownership of goods, which it is alleged defendant intended to steal or stole, the ownership must be proved as laid; but according to the better opinion, when such an allegation is unnecessary, and the conviction is for burglary only, and not larceny, the allegation of ownership is surplusage, and a variance is immaterial;’ (6 Cyc. 230; Harris v. State, 61 Miss. 304; James v. State, 77 Miss. 370, 26 South. 929, 78 Am. St. Rep. 527; State v. Tyrrell, 98 Mo. 357, 11 S. W. 734; State v. Hutchinson, 111 Mo. 257, 20 S. W. 34; Reg. v. Clarke, 1 C. & K. 421, 47 E. C. L. 421.)

Apellant assigns error in the admission over objection of a dirk knife and sheath taken from the defendant at the time of his arrest. Without determining the question whether the knife was admissible as evidence upon the part of the state, as contended by the attorney-general, it is sufficient answer to appellant’s contention to state that the defendant at the trial testified that he based his defense upon the dirk knife in question. As an explanation of his flight, after the breaking and entering of the house had been discovered and himself found in the immediate vicinity thereof and charged with the offense, he testified that the reason he ran away was because he had this particular knife in bis possession, and that he was afraid, if arrested, he would be in danger of conviction for carrying a concealed weapon, and that to avoid such possibility he ran from the scene of the crime, and attempted to escape from his pursuers. Evidence upon which the defendant testifies he bases his main defense could hardly be regarded as prejudical.

Counsel for appellant next assigns prejudicial error committed by the district attorney in his concluding argument to the jury. We have heretofore in numerous cases, and especially in the recent case of State v. Rodriquez, 31 Nev. 342, had occasion to comment upon the limitations which should control prosecuting attorneys in their arguments before the jury. In this case, however, after an examination of the alleged objectionable language used by the district attorney, we are unable to find anything therein that could be considered objectionable. We find no reference to facts not brought out in the evidence introduced upon the trial nor the statement of conclusions which may not legitimately follow from the facts disclosed by the evidence.

No error appearing in the record, the judgment and order of the trial court are affirmed.