Laws

1 Specific Money, Goods Post Date: Sat, 26 Jul 2008 13:59:02 +0000
Where the indictment omits an averment of intent, and alleges an actual stealing of the goods only, and the intent to steal the same only is proved, the defendant must be acquitte d I Hale P C 559, 560; 2 East p C 514; 3 Chitty Cri M L 1114; Rex v Furnival, R R C C 445; Wolf v State, 49 Ala 360; Jones v State, n N H 271 See State v Colter, 6 RI 197; State v Brady, 14 Vt 356; and A Averment Essential, supr A However, if the larceny be proved, a conviction for burglary is, of course, propeRJones v State, ii N H 269; Speers v Co M, 17 Gratt ( Va) 572; Butler v Co M, Si Va 163 And see I Hale p C 560; b PROPERTY NEED NOT BE SPECIFIE d It is not necessary to specify in the indictment the particular goods or chattels the defendant intended to stea L 1 2 East p C 514, 509, 510; Wolf v State, 49 Ala 360; State v Eaton, 3 HarR(De L) 554; State v Golden, 49 Iowa 50; Olive v Co M, 5 Bush (Ky) 376; Co M v Hope, 22 Pic K (Mas S) i; Co M v Tuck, 20 Pic K (Mas S) 361; State v Henley, 30 Mo 513; State v Squires, II N H 39; State v Moore, 12 N H 43; People v Marks, 4 P Ark CR Rep ( N Y) 154; State v Jesse, 3 Dev B (N Car) 108 Form of Verdi Ct In Comer's Case, 2 Leach Cri M L (2d e d) 34, the indict- ment omitted an averment of intent, alleging an actual stealing onl Y The court held that a verdict of " Not guilty of the burglary" was an ac- quittal of the stealing in the dwelling- hous e The judges said, however, that "if the entry had been, 'jury say, not guilty of breaking and enter- ing the house in the night-time, but guilty of the rest of the indictment,' the defendant would have been guilty of the stealin g" But in 2, East p C 516, the distinction made in this case is called "an overstrained nicety, which has since been corrected upon better consideratio N" Where Intent only is Alleged, a con- viction for larceny under the indict- ment is impossibl e Bell v State, 48 Ala 694; Fisher v State, 46 Ala 722 Fatal Defe Ct Where the statutory definition of the offense is breaking, etc, and stealing, etc, simply alleg- ing the intent and omitting the aver- ment of actual stealing is insufficient. Reg v Wenmouth, 8 Cox C C 348 Complaint and Indictment Varianc e Where the offense laid in the indict- ment was a breaking, etc, with intent to commit a rape, and the one de- scribed in the complaint was breaking, etc, with intent to steal, the court held that the same crime was charged in both cases, and there was no vari- ance between the burglary as charged in the one and that laid in the otheRAlderman v State, 24 Neb 97 Prior Acquittal or Conviction of Lar- ceny or Burglar Y For discussion of effect of such, see VII I Joinder of Crime S Averment of an Actual Larceny in the Indictment is not essential except where the statute makes the stealing an essential element of the offens e See Reg v Wenmouth, 8 Cox C C 348, also VII I Joinder of Crimes, andB Burglary and Larceny in Same Count. 1 Specific Money, Goods, or Chattels in- tended to be stolen, it is not necessary to aveRJones v State, 18 Fla 889, citing Spencer v State, 13 Ohio 401, the latter so ruled in the case of an indictment framed under Swan's Stat232 Also Wright v Co M, 82 Va 183 In Coleman v State, 2 Tex App 515, the court said: " The same particularity is not required in bur- glary with intent to stea L We do not believe that it is equally as important to describe specifically the property intended to be stolen as it is the prop- erty actually stole N" See also Mar- tin v State, I Tex App 528 Impracticabl e In Womack v State, 6 Lea (Tenn) 148, the court observes that it is unnecessary to specify the articles, as it is " impossible, where no larceny has been committed, and the intent is to be gathered from the act of breaking in and other circum- stance S It cannot be known what arti- cles would have been taken if the felo- nious intent had been carried out; and to require the indictment to spec- ify all the goods and chattels in the house would be absur d" Not a Statutory Ingredient or Essential Element of the Offense of Theft.

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403 Also C Description Post Date: Sat, 26 Jul 2008 13:45:44 +0000
In Washington v State, 17 Tex App 203, the same decision was reached; the court basing its decision, how- ever, on the ground that it is not a statutory ingredient or an essential element of the offense of theft that the property stolen should be a particular kind of corporeal personal property, and therefore not in conflict with Rod- riguez v State, 12 Tex App 552 Should be Set out with Certaint Y In Martin v State, i Tex App 525, the general rule enunciated is recog- nized, but the court adds that the property should be "set out with suf- ficient certainty, so that he [defend- ant] could plead a final judgment of acquittal or conviction rendered in the case in bar of another prosecution for the same offens e" C DESCRIPTION OF PROPERTY UNNECESSAR Y Nor is description of the same essential to the indictment. 1 d AVERMENT OF AMOUNT OF PROPERT Y The amount of the goods stolen is immaterial, and need not be state d 2 e AVERMENT OF VALUE OF PROPERT Y The kind or value of the goods or merchandise intended to be stolen is likewise im- material, and may be omitte d 3 In some of the states, however, where the value of the article has become, under statutes, a neces- sary element of the offense, it must be set forth in the indictment, expressly or by implicatio N 4 Proof Must Conform to Allegatio N Where articles are alleged as stolen, proof must correspond, or there will be a varianc e Black v State, 18 Tex App 128 May be Proved, though not Averre d It is not necessary to allege certain articles as stolen, to adduce proof of the sa Me Foster v People, 49 How Pr ( N Y Supreme Ct) 69; Allen v State, 12 Lea (Tenn) 424 Where Goods Intended to be Stolen are Specified, the proof must be of intent to steal those specified, to warrant -a convictio N Reg v M'Pherson, Dear S B C C 197 See Reg v Powell, 5 Cox C C 326, 2 De N C C .403 Also C Description of Property Unnecessary, infr A 1 Lanier v State, 76 Ga 304, hold- ing that the goods need not be de- scribed under section 4386 of the cod e "With intent to steal the property of one F," was a sufficient allegation of intent, said the court in Black v State, 18 Tex App 124 See also Hunter v State, 29 Ind 82; Davis v State (Tex Cri M App, 1893), 23 S W Rep 687 See, however, People v Ah Ye, 31Cal451 Word " Personal " Unnecessar Y "Goods and chattels" are sufficient, without averring them personal goods and chattel S Choen v State, 85 Ind 209 Word " Property " not Bad for Uncer- taint Y See Black v State, 18 Tex App 124, and in Sims v State, 136 Ind 358, construing section 1825 of Burns' Rev Stat1894, the court held the aver- ment " with intent to steal the goods, chattels, and property," etc, a good one, being not defective for uncer- tainty, on the ground that the word " property " includes also real estate, which is not subject to larcen Y Proof If laid descriptively, as "to steal one overcoat," then such partic- ular intent must be prove d State v Carroll, 13 Mont 248 See note, Proof, supr A 2 Co M v Williams, 2 Cus H (Mas S) 582, holding such an averment un- necessary in an indictment framed for the breaking, etc, denned in Rev Stat, C 126, 14; also State v Bart- lett, 55 Me 213, holding further that if any of the goods averred to be sto- len be correctly laid, a conviction for the larceny is goo d 3 Reg v Lawe S i C K 62, 47 E C L 62; Wicks v State, 44 Ala 399, as regards an indictment for burglary based on Rev Code, 3695; People v Ah Ye, 31Cal451; Jones v State, 75 Ga 825; Lanier v State, 76 Ga 304, as regards indictment under Code, 4386; Hunter v State, 29 Ind 82; Short v State, 63 Ind 376; State v Jennings, 79 Iowa 513; State v Ray, 79 Iowa 765; Co M v Williams, 2 Cus H (Mas S) 582, in an indictment under Rev Stat, C 126, 14; State v Beckworth, 68 Mo 82; State v Cody, i WinSt (N Car) 197; Martin v State, i Tex App 525; Sullivan v State, 13 Tex App 464; Green v State, 21 Tex App 64; Hamilton v State (Tex Cri M App, 1893), 24 S W Rep 32; State v Kane, 63 Wi S 267, and Hall v State, 48 Wi S 688, under Rev Stat, ^ 4410, 1046 Grade of Offense or Assessment of Pun- ishment when not concerned, as in bur- glary, Texas Penal Code, art.

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Territory v Duncan, 5 Post Date: Sat, 26 Jul 2008 13:28:49 +0000
711, the value of the goods stolen need not be allege d Collins v State, 20 Tex App 197 Setter practice to allege it, however, suggests the court in the above cas e 4 Where Building must Contain a Thing of Valu e Usually, owing to the lan- guage and wording of the indictment, the averment of the articles stolen, or attempted to be, is also made to serve the purpose of fulfilling the require- (/) AVERMENT OF OWNERSHIP OF PROPERT Y The usual aver- ment of ownership of the property alleged to have been intended to be stolen is that " of one B ;" but such an averment is not necessary to the validity of the indictment, in burglar Y 1 Proof Yet if the intent is thus particularized, and the ownership is specifically laid, the averment, though needless, must be proved, and as lai d 2 ment heretofore referred to (Iv 2B (3) (f) Goods in the House), where it was explained that the indictment must show that articles of the kind required by statute were contained in the build- ing broken and entere d In such a case, the articles averred to have been stolen or intended to be stolen must be shown to be of value, either ex- pressly or impliedly, when necessary, as heretofore show N See Lee v State, 56 Ga 477, together with cases in preceding referenc e Where Value Determines the Penalt Y In Maine the allegation of the value of the goods intended to be stolen may be of their collective or their gross valu e The "sum total is all that is necessary to determine what penalty the criminal has in- curred," except, however, in cases where the verdict negatives the steal- ing of a part of the articles, in which case the value of these actually stolen or intended to be should be state d State v Hood, 51 Me 363 Where Value Determines the Offens e In Montana, where it is made a felony to steal personal property of the value of fifty dollars or over, but not less, the value of the goods should be stated in the indictment. " With in- tent the goods and chattels of B," is an insufficient averment. Territory v Duncan, 5 Mont 481 See note, Where Petit Larceny is a Misdemeanor, infr A Where the Fact of Value is a Statutory Requirement.

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Also the words "personal property," Post Date: Sat, 26 Jul 2008 13:17:02 +0000
(See note, Where Build- ing must Contain a Thing of Value, sttpr A) In Ohio, under a statute de- fining the offense as a breaking, etc, "with intent to steal property of any value," the article alleged in the in- dictment must be shown to have value, though the employment of a term importing value is sufficient. In Spears v State, 2 Ohio St 588, "bank bills" with no averment of value, was held sufficient. Also the words "personal property," in Boose v State, 10 Ohio St '578; and "goods and chattels," in Spencer v State, 13 Ohio 401, were deemed to sufficiently import value, rendering unnecessary an express averment thereof Where Petit Larceny is a MisdemeanoRIn California it was held, in People v Murray, 8Cal519, that since, by law, grand larceny only was a felony, and petit larceny was a misdemeanor, the distinction being the value of the goods stolen, such value had to be averred in the indictment averring an intent to steal goods, that it might appear that the intent was to commit a felon Y Where Petit Larceny is a Felon Y But the law being afterwards changed, making petit larceny a felony, it be- came no longer necessary to aver value as abov e People v Ah Ye, 31 Ca L 451 1 "Of one B" is the usual aver- ment, and is sufficient, Rex v Jenks, 2 Leach C C 774; Houser v State, 58 Ga 78 ; but such allegation is not necessary, Rex v Jenks, 2 Leach C C 774, holding it better to omit it.

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Contr A It seems Post Date: Sat, 26 Jul 2008 12:58:04 +0000
Reg v Lawes, i C K 62, 47 E C L 62; People v Shaber, 32Cal36; Jones z State, 18 Fla 889; State v Jennings, 79 Iowa 513; State v Ray, 79 Iowa 765 ; State v Morrissey, 22 Iowa 160; Josslyn v Co M, 6 Met (Mas S) 239; State v Tyrrell, 98 Mo 354; Wright v Co M, 82 Va 183; State v Clark, 42 Vt 633 In Kentucky the ownership of the property stolen need not be described with more precision or certainty than is necessary to inform the accused of the actual offense charged against him, and to bar a second conviction therefoRJohnson v Co M, 87 Ky 191 To Convict for Larceny, however, the ownership must be allege d State v Bartlett, 55 Me 209 2 Rex v Jenk S 2 Leach C C 774, 2 East p C 514; Beall v State, 53 Ala 460 ; Berry v State, 92 Ga 47; Co M v Moore, 130 Mas S 45 ; Neu- brandt v State, 53 Wi S 89 Agent S It is not necessary that the ownership of the property intended to be stolen should be laid in the real owner ; it is suffi- cient if the person laid as such has a special property therein at the time of the burglar Y 1 Husband and Wif e It is no error to lay the ownership of the goods in the husband, whether such be his or his wife's propert Y 8 Joint Owner S When the goods belong to joint owners, the aver- ceeds to the real owner, of whom he was the Agent People v Smith, I P Ark CR Rep ( N Y) 329 Gratuitous Bailment. And they may be laid in a bailee as the owner, even though the bailment is gratuitou S Wimbish v State, 89 Ga 294 Sheriff under Attachment Unnecessary Allegatio N The property intended to be stolen is correctly laid in a sheriff, holding under a writ of attachment, and occupying the house under a rental contract, the rent to be paid out of proceeds of goods levied on; and it is unnecessary to allege that he held the goods and occupied the house as sheriff Lenhart v State (Tex Cri M App, 1894), 27 S W Rep 260 Sheriff as Watchma N But the own- ership should not be laid in a sheriff placed in a house merely to watch the property on the night of the burglar Y Lenhart v State (Tex Cri M App, 1894), 27 S W Rep 260 2 Robinson v State, 84 Ala 434^ holding it to be no variance (at any rate, before 1886) for the property to be the separate property of the wife, though alleged to be that of the hus- ban d Also State v Matthews, 76 N CaR41; State v Wincroft, 76 N Car 38 Though Husband a Felo N And in Reg v Whitehead, 9 C p 429 (Ser g Pettit's e d, p 175), the own- ership of the goods was held to be improperly laid in the wife, though the husband had been convicted of felony, and was still in prison under the sentence, the articles stolen hav- ing belonged to him before conviction, and still remaining in the house at the time of the burglary, though in the possession of the wif e Estate of Deceased Husban d The ownership of property which formed a part of the unadministered estate of a deceased husband was held correctly laid, in Co M v McGorty, 114 Mas S 299, in the widow of the deceased (construing Ge N Stat, C 172, 12). Contr A It seems that in cases where, in addition to an averment of intent, there is one of actual stealing of the goods of certain persons (nam- ing them), the latter averment need not be proved as laid; I e, it is not a variance to prove that the goods be- longed to parties other than those named, because the latter averment may be wholly rejected as surplusage, leaving the indictment to stand with the general averment of intent, this alone being sufficient.

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3 Ownership in Different Count Post Date: Sat, 26 Jul 2008 12:38:30 +0000
Reg v Clarke, i C K 421, 47 E C L 421 ; Larned v Co M, 12 Met (Mas S) 245 In Johnson v Co M, 87 Ky 191, the same rule was followed, the court holding that where the intent alleged was to commit a larceny, with a fur- ther allegation of the actual taking of goods (naming them) of W , the owner- ship as thus alleged need not be prove d In Harris v State, 61 Mis S 304, it was even held that, though the aver- ment was with intent to steal the goods of A, and that the defendant did actually steal a pistol from A, it was wholly immaterial that the proof showed it to be the property of an- otheRMiddle Letter of Na Me While it is not necessary to insert the middle letter of the name of the owner, yet, if it is done, it must be prove d Price v State, 19 Ohio 423 Christian Na Me And where the Christian names of two partners al- leged as owners were set forth, in addition to the firm name, they had to be prove d Doan v State, 26 Ind Ownership Averred in Tw O If the ownership is laid in two, and proved to be in only one, there is no varianc e Mulrooney v State, 26 Ohio St 326 1 See note, Miscellaneous Aver- ments of Ownership, infr A Lawful Custod Y It is sufficient if the goods are in the lawful custody of the one laid as owner, with authority to sell them and account for the pro- ment of the ownership thereof in any one or more of them is not defectiv e 1 Partner S The same rule holds in the case of partners as in that of joint owners, and the simple averment of the name of one or of the firm is sufficient. 2 Ownership in Severalt Y There appears to be a conflict of opinion on the question as to whether it is necessary or not, where the owners of the goods are several, not joint, to make the distinction in the indictment. 3 Ownership in Different Count S Where the ownership of the goods is in doubt, it is usual to insert in the indictment several counts, laying in each the ownership in a different perso N 4 g AVERMENT THAT THE PROPERTY WAS IN THE HOUS e The goods described in the indictment for burglary as those in- tended to be stolen, or actually stolen, must be alleged, in some way, to have been in the building broken, or the indictment is ba d 5 1 Reg v Clarke, I C K 421, 47 E C L 421 In Indiana, by ex- press statutory provision, the rule is establishe d Doan v State, 26 Ind Proof But if the ownership is laid in several as joint owners, the proof must correspond to such averment.

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Ross v State, 16 Tex Post Date: Sat, 26 Jul 2008 12:19:24 +0000
State v Ellison, 58 N H 325, where it was held error, the goods belonging some to A and some to B, to lay the ownership in A and B jointl Y But see Van Riper's Case, 2 City Hall Re C ( N Y) 45 See Partners, infr A 2 See Joint Owners, supr A Spradling v State, 17 Ala 440, hold- ing that in an indictment for con- spiracy to commit burglary, where the goods belonged to A and a dormant partner B, the averment of them in A alone should be sustained as sufficient. In Texas, by statute (Code CR Pro, 426), the same rule holds goo d Coates v State, 31 Tex Cri M Rep Further Descriptio N It is sufficient to lay the ownership in copartners, without any further description or allegatio N Co M v O'Brien, 12 Allen (Mas S) 183 Christian Na Me The averment be- ing, " house of S p F and J C v, partners, doing business under the firm name of F v, with the felonious intent to steal, take and carry away the personal goods * * * of said S p f and J C v," the court held that it was necessary to prove the Christian names of such partners, and not only that the goods belonged to the fir M Doan v State, 26 Ind 495, reconciling People v Ah Sing, 19Cal598 See Joint Owners, supr A 3 In Van Riper's Case, 2 City Hall Re C ( N Y) 45, it is held sufficient, where A and B are several owners, to state the property as belonging to A and B in the aggregate, without a separation of interest S But in State v Ellison, 58 N H 325, such an aver- ment was held defective where the property belonged some to A and some toB Miscellaneous Averments of Ownership Sufficient Allegatio N "With intent to * * * steal * * * from out of the possession of A and out of said house," was held a sufficient allega- tion of ownership of certain chattels named in the indictment. Ross v State, 16 Tex App 558 Box in Church Pe W The ownership of a box in a church pew should be laid in the vicar and other S See Reg v Wortley, i De N C C 162 Ownership in Minor Chil d The orna- ments of a minor daughter should be laid in her as the owner, not in her fatheRState v Lee, i HouSt CRCa S (De L) 335 4 Baker v State, 4 Ark 56, hold- ing it a custom "as legal as it is ad- vantageou S" See also, for application of custom, Rex v Rees, 7 C p 568, 32 E C L 633; People v Smith, I P Ark CR Rep ( N Y) 329 5 Winslow v State, 26 Neb 308 Sufficient Allegation S It is sufficient H SPECIAL STATUTORY REQUIREMENT S When, under stat- utes, the kind or character of the goods intended to be stolen is specially designated, those described in the indictment should, by apt words, appear to be included in the statutory term S 1 I PROOF OF LARCEN Y The larceny alleged as committed, or intended to be, must be prove d 2 4 Intent to Commit MurdeRWhen the intent is to murder, the averment need not set forth the names of the persons the burglar intended to kil L 3 5 Intent to Commit Rap e An averment of intent to commit rape need not go into a recital of the constituents of said cri Me 4 to charge an intent to steal the goods " in the said dwelling-house then and there bein g" Reg v Lawes, I C K 62, 47 E C L 62 " Then and there being found," is a sufficient allegation that the goods were in the hous e Sullivan v State, 13 Tex App 464 The averment, "with the intent to * * * steal * * * from out of the possession of A and out of said house," is "sufficient.

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See West v State, 35 Post Date: Sat, 26 Jul 2008 12:00:05 +0000
Ross v State, 16 Tex App 558 When Deposited Therei N In State v Turner, 106 Mo 277, the court held, in an indictment for a statutory break- ing, that it was sufficient to allege that the goods and chattels were in the house, etc, at the time of the commission of the burglary; and no allegation as to when they were de- posited there was necessar Y Proof And there must be proof of goods in the hous e Lyon's Case, 2 East p C 498 See Reg v Lawes, I C K 62, 47 E C L 62 1 Statutory Words or Equivalent. The words used in the indictment should be those employed by the statute, or their equivalent. See West v State, 35 Tex 91, and3 Intent to Commit Larceny, supr A Allegation of Goods in the Hous e See Iv 2B (3) Statutory Description, supr A "Kept for Use, Sale, or Deposit" were the statutory words describing the goods, the intent to steal which con- stituted the offens e An indictment using the words " kept for use and safety," was held sufficiently to con- form to the statutory requirement.

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2 People v Mulkey, 65Cal501 Post Date: Sat, 26 Jul 2008 11:40:48 +0000
Roberts v State, 55 Mis S 421 " Without the Consent of the Owne R" In Texas, under the statute, it is necessary to charge that the intended theft of the goods was without the consent of the owner of them; and the omission is fatal to the indictment. Treadwell v State, 16 Tex App 643; Taylor v State, 23 Tex App 639 Nor is the averment " the property of A and B without their consent" suf- ficient; it must be without the con- sent of eitheRTaylor v State, 23 Tex App 639 Nor an averment to take the property of several without the consent of the " owner," and with intent to deprive the "owner" of the value, etc Jones v State (Tex Cri M App, 1892), 20 S W Rep 395 See v3 A Meaningless Words, supr A Fraudulent Intent to Take Property from Possessio N In O'Brien v State, 27 Tex App 448, the charge of an intent to commit theft, failing to allege a fraudulent intent to take the prop- erty from the possession of the owner, was held defective, though the indict- ment might have stood if the charge had appeared in the subsequent aver- ment of the actual theft. 2 People v Mulkey, 65Cal501; People v Young, 65Cal225 Yet see State v Cody, i WinSt (N Car) 197, holding that proof of a robbery is sufficient to support the averment.

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The intents to commit theft Post Date: Sat, 26 Jul 2008 11:24:50 +0000
3 State v Newton, 30 La An N Proof The proof must be of an in- tent to murder, and nothing les S 3 Coke InSt 65 Allegatio N See Iv 2 (3) (d) Other Allegations, supr A 4 It will be noted that the Texas cases hold a detailed averment essen- tial, contrary to the other authorities on the subje Ct Averment that the Woman was in the Hous e The averment of the presence of the woman in the house at the time is not necessary, the court holding that the intent can exist without her presenc e Burke v State, 5 Tex App 6 Several Intents Permissibl e The indictment may charge a breaking and entering the building, with several intents, laying them in the same count or in different count S 1 VII I JOINDER OF CKIMES 1 In Genera L It is a frequent practice to charge, in the indictment for burglary, the felony or other crime or crimes committed at the same time with the former; and this is sustained by authorit Y 2 77 But if it was necessary, the aver- ment " with intent then and there " would have been sufficient. Burke v State, 5 Tex App 77 Averment of Se X Nor is it necessary to allege that the person against whom the intent was directed was a woma N State v Williams, 41 Tex 98 Additional Allegations of Assault An additional allegation of assault may be rejected as surplusag e Bradley v State, 32 Ark 714 Indictment and Complaint Varianc e In Alderman v State, 24 Neb 97, the court decided that it was not error tocharge in the indictment a burglary with intent to rape, though the com- plaint had charged a burglary with intent to stea L They were held to be the same cri Me Acquittal or Conviction of Whole Charg e In Co M v Doherty, 10 Cus H (Mas S) 54, an instruction to the jury that, under an indictment charging a breaking and entering with intent to commit a rape, they must acquit or convict of the whole charge set forth therein, was held not unfavorable to the accused, and not reversible erroRJury to Decid e It is for the jury to decide whether the intent to commit rape existe d Burke v State, 5 Tex App 79 Proof And such intent must be prove d State v Carpenter, r HouSt CRCa S (De L) 367; Davis v State, 22 Fla 633 1 Adultery and Theft. The intents to commit theft and adultery may both be charge d State v Fox, 80 Iowa 312 Several Thefts al So State v Christ- mas, 101 N Car 749 Alternative Averments of Intent.

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