2 Wyo. 324 | Wyo. | 1880
This case is brought here by the prosecuting attorney of Uinta county, under sections 146,147, 148 and 149 of the Criminal Laws of Wyoming, as found in the Compilation of 1876: these sections are quoted entire in the opinion I have read this day, in the case of the Territory v. Andrew Nelson, and so need not be repeated here. It seems that one Samuel- Hart was indicted in that court for burglary, and that the defendant Conley was indicted as an accessory before the fact. The statute which defines the crime of burglary in Wyoming, is as follows: (Page 254, sec. 38, edition 1876.)
Sec. 38. “Every person who shall willfully and maliciously and forcibly break and enter, or willfully and maliciously without force (the door or any window being open), enter into any dwelling house, kitchen, office, shop, storehouse, warehouse, malt house, stilling house, banking house,
The statute defining accessories, is as follows: (Compiled Laws of Wyoming, page 249, sec. 18.)
Sec. 13. “ An accessory is he or she who stands by and aids, abets or assists, or who, not being present aiding, abetting or assisting, hath advised and encouraged the perpetration of the crime. He or she who thus aids, abets or assists, advises or encourages, shall be deemed and considered as principal, and punished accordingly.”
The indictment under which Hart was charged as principal and Conley as accessory,, is,as follows
“ Territory or Wyoming, CouNty or Uinta. ss.
At a term of the district court, begun and held at Evan-ston, within and for the county of Uinta, on the first day of July, in the year of our Lord One thousand eight hundred and seventy-eight, the jurors of the grand jury of the county of Uinta, good and lawful men then and there returned, tried, empanneled, sworn and charged to inquire within and for the body of the’ county of Uinta, at the term aforesaid, upon their oath aforesaid, in the name and by the authority of the Territory of Wyoming, do present and find that Samuel Hart, laté of the county aforesaid, on the 16th. day of January, in the year of our Lord one thousand eight hundred and seventy-eight, with force and arms at the county aforesaid, a eertain:close inclosure, known as a hand-car house of the Union Pacific Railroad Company,
H. GARBANATI,
Prosecuting Attorney for said Uinta County.”.
The defendant Conley demurred to the indictment in the court below and the court held the indictment insufficient in law. The prosecuting attorney took exception to the court’s ruling and has brought the case here properly. The court, after inspecting the record, thinks the questions raised ought to be passed upon, and proceeds to do so. The question raised was: was the indictment sufficient to charge Conley as accessory before the fact to the crime of burglary. We think it was not, and the court below acted properly in sustaining the demurrer which was interposed to it. In our opinion the indictment was defective, and so insufficient in law, for the following reasons :
1st. — In that it did not charge Conley as principal, either directly or by force of the statute making him a prin-'
2d. — It failed to charge the specific felony intended to be committed, or that any was committed by Conley. In burglary it is usual, and approved, to charge an actual larceny, because, if the testimony should fail to sustain the burglary, i. e.,.the breaking and entering, the defendant may be held for simple larceny, and an indictment so charging has been held good, though on examination, the allegation is found defective. Vide 8 Cal., 579; State v. Lockhart, 24 Geo., 420; 2 Bishop’s Criminal Procedure, 2d edition, sees. 142 and 143 and cases there cited.
3d. — The indictment as to Conley failed to charge that the property was feloniously taken. The burglarly is incomplete without the intent to commit larceny. To constitute larceny the intent must be felonious: all the authorities agree upon these points.
4th. — As to Conley the indictment failed to allege ownership of the “ hand-car house.” This is essential, 2 Bishop’s Criminal Procedure, 2d edition, 137.
It was objected in the argument that the words, “ handcar house” could not be included in the words, “ or any
Such pleading is not only not' permissible, but in criminal cases not only not justifiable, but not to be tolerated. We are therefore, for the reasons stated, clearly, of opinion that the court below, because of the defects stated in the count charging Conley as an accessory before the fact in the burglary alleged to have been committed by one Samuel Hart, acted properly in sustaining the demurrer interposed by the said Conley to the count in the indictment, which charged him as an accessory before the fact; because clearly the count charged no criminal offense in such legal form as the court upon a' conviction could have rendered judgment, or as would have authorized a conviction of the said Conley as an accessory before the fact to the crime of burglary alleged to have been committed by the said Samuel Hart.
Judgment affirmed.