Laws

5 1 i Haw K Post Date: Sat, 26 Jul 2008 16:26:59 +0000
The great weight of authority, however, is in favor of the contrary view, holding the averment of the actual commission of the felony a sufficient averment of intent, without an express allegation of the latTer 3 Either Form Sufficient. And either form may be used, 4 though it is probably better to not omit the intent and to include both aver- ments in the indictment. 5 1 i Haw K p C, C 38, 18; Davis v State, 22 Fla 633; Robertson v State, 6 Tex App 683; Allen v State, 18 Tex App 122; Hammons v State, 29 Tex App 445; State v Rob- ertson, 32 Tex 163 See State v Tyrrell, 98 Mo 357; State v McGraw, 87 Mo 164 Intent must be Proved, and as Lai d I Hale p C 561; 2 East p C 510- 514; People -v Collins, 53Cal185; State v Manluff, I HouSt CRCa S (De L) 208; State v Eaton, 3 HarR(De L) 554; State v Bell, 29 Iowa 316; State v Cowell, 12 Nev 341; State v Ryan, 12 Nev 401; Allen v State, 18 Tex App 122; Black v State, 18 Tex App 129, citing Reeves v State, 7 Tex App 276; State v Cooper, 16 Vt 554 And see Reg v Clarke, i C K 421, 47 E C L 421; Edwards v State, 62 Ind 34 The Question of Intent is Left to the Jur Y Rex v Smith, R R C 417; Burke v State, 5 Tex App 79 2 State v Eldridge, 12 Ark 608; Wood v State, 46 Ga 324, in which the court held an omission of such an averment fata L " The crime of burglary," says McCay, J, "consists in breaking * * * with intent to com- mit a felon Y The intent is a material and necessary part of the cri Me * * * If the intent is material it is necessary to allege it.

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2866) Post Date: Sat, 26 Jul 2008 16:14:50 +0000
* * * And an indictment fails to charge the offense of burglary unless the intent of the breaking * * * be set fort H" See also Reeves v State, 7 Tex App 276; Black v State, 18 Tex App 127; Hammons v State, 29 Tex App 449, being necessary under statute (Pe N Code, art. 704; Pas C Di g, art. 2866).

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2 sustain said averment, there Post Date: Sat, 26 Jul 2008 15:57:47 +0000
Distinct Offense S Co M v Roby, 12 Pic K (Mas S) 496, approves Rex zVan- dercomb, 2 Leach 816, holding that a breaking with intent to steal, and breaking and stealing, are two distinct offense S Also Reg v Reid, i Eng L E Q 599 See State v Dowling, 84 N Y 481, etc 3 At Common La W Comer's Case, 2 Leach Cri M L (2d e d) 34; Hunger- ford's Case, 2 East p C 518; Rex v Withal, 2 East p C 517; i Leach C C 88; Rex v Furnival, R R C C 445; Rex v Butterworth, R R C C 520; Black v State, 18 Tex App 127 Under Statute S State v Wilson, 59 N H 139; and may be sentenced under Ge N Laws, C 279 See also Davis v State, 3 Cold W (Tenn) 83 and Par- due v Stat e 4 Baxt (Tenn) 14, which hold that, in statutory house- breakings, it seems that the indict- ment may be silent as to the intent and aver an actual felony as com- mitted, even though the statute de- fines the offense as a breaking, etc, with intent, etc Other Case S Fisher v State, 46 Ala 717; Wolf v State, 49 Ala 360; Barber v State, 78 Ala 19; Saxton's Case, 2 HarR(De L) 533; Olive v Co M, 5 Bush (Ky) 376; Co M v Her- sey, 2 Allen (Mas S) 179; Crowley v Co M, n Met (Mas S) 578; State v Henley, 30 Mo 513; Jones v State, II N H 269; State v Ayer, 23 N H 318; State v Grisham, I'Hay W ( N Car) 13; Co M v Brown, 3 Rawle (Pa) 211 See also State S Bartlett, 55 Me 200 4 i Hale p C (ist A M e d) 560, 561; 2 East p C 512, 513; Speers v Co M, 17 Gratt ( Va) 572 5 Intent should be Allege d If the actual commission of the felony is alone alleged, and the proof fails to b A FELONY MUST BE AVERRED AS INTENDE d At the com- mon law, and under the present law where statutory modifica- tions have not been introduced, it must appear in the indictment that the intent was to commit a felon Y 1 C DESCRIPTION -(l) Word "Felony" or Name of Particular Felony, Sufficient. Some cases hold that a description of the felony intended to be committed, further than the use of the word " felony " or the name of the specific crime, is unnecessary in the indictment. 2 sustain said averment, there can be no conviction for burglary, even though the intent is amply prove d I Hale p C 559; Rex v Furnival, R R C C 445; State v Brady, 14 Vt 356 And see3 Intent to Commit Lar- ceny, infr A Preferable For M The preferable form of indictment is probably the averment of both the intent to com- mit, and the actual commission of the felon Y See VII I Joinder of Crimes, infr A Intent Alone Insufficient.

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1 under the statute (Pa Post Date: Sat, 26 Jul 2008 15:39:39 +0000
Stat7 8 Geo Iv, C 29, 12, thus defines a housebreaking: " Breaking and en- tering a dwelling-house, and stealing therein any chattel," etc An indict- ment simply alleging an intent, and not an actual stealing, was held ba d Reg v Wenmouth, 8 Cox C C 348 1 i Haw K p C, C 38, 18 Intent to Commit a Trespass is not suffi- cient to be laid in the indictment, as, to beat any person in the house; such will not be a sufficient allegation, even though the consequences be a corrj- mission of an actual felony, or though the intent actually be to commit a fel- ony; but a felony must be laid as in- tended to be committe d 3 Coke InSt 65; i Hale p C 561; 2 East p C 509 Intent to Commit a Misdemeanor is an insufficient averment. Wood v State, 18 Fla 967, in an indictment for bur- glary under Laws of 1868, C 1637, sub- C 4 12; State v Curtis, 30 La An N 815; Co M v Newell, 7 Mas S 245 Also in indictment under Stati E d V I, C 12; i Hale p C 548, 562, 565- Intent to Commit Petit Larceny is a defective averment where petit larceny is not a felony, Wood v State, 18 Fla 967; but where it is a felony, an allega- tion of intent to commit the same, de- scribing it particularly, was held goo d Myers v State, 92 Ind 390 Crime Made Felony by Statut e The averment of an intent to commit a crime made felony by statute is goo d See last case, and I Haw K p C, C 38, 18; State v Cooper, 16 Vt 554 Also i Hale p C 561 Rule Modified under Statute S Where, by statute, it i S not essential to the offense that the intent be to commit a felony, the averment of intent, framed according to the statutory require- ments, is sufficient in an indictment for that offens e Wolf v State, 49 Ala 360; Tilly v State, 21 Fla 242; Houser v State, 58 Ga 78 In the latter case, in indictment under Code, 4628, it is not necessary to allege any intent to commit a larceny or a fel- on Y In Linbeck v State, i Wash 336, " with intent to commit a misde- meanor " was held a sufficient aver- ment, under Code Wash Ter, 828 Proof A felony must be proved as well as alleged, i Hale p C 561; 2 East p C 509; Rex v Knight, 2 East P C 510; Dobb's Case, 2 East p C 513; Rex -v Dingley, 2 Leach 840 Conviction for MisdemeanoRAver- ment of intent to commit a misde- meanor was held good to support an indictment for a misdemeanor, in Co M v Taylor, 5 Bin N (Pa) 277 2 Slaughter v Co M (Ky, 1894), 24 S W Rep 622, holds that " with in- tent to commit a felony," without stat- ing in what the felonious intent con- sisted, is good both at common law and under the criminal code of that stat e Also State v Wilson, 9 Wash 218 (following Linbeck v State, i Wash 336), holds such an averment sufficient, under Code, 828 In People -v Richards, 44 Hun ( N Y), 283, it was held not necessary to specify what felony was intended to be committed in an indictment for burglary in the third degre e And proof of an intent to commit any fel- ony or any other crime is sufficient (2) Further Description Necessar Y But most of the authorities consider such meagre description insufficient, and require further particularity in the averment of intent in the indictment. 1 under the statute (Pa Code, 498, 499, 500).

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" "Arso N" "With intent Post Date: Sat, 26 Jul 2008 15:28:36 +0000
"Felony" not Sufficient. In State v Brady, 14 Vt 356, the court says: " It is not enough to allege an intent to commit some felony generally, but some particular species of it must be named, as to commit murder, robbery, or theft." "Arso N" "With intent to commit arson," is deemed sufficiently specific, in Shotwell v State, 43 Ark 345 "Cri Me" In Mason v People, 26 N Y 202, the court held that, since the Revised Statutes, an indictment charging a breaking and entering, etc, " with intent to commita crime," being in the language of the statute, is not so defective as not to be cured by judgment.

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State v Jones, 10 Iowa Post Date: Sat, 26 Jul 2008 15:09:38 +0000
This defect, however, is not aided by a second count, being a separate one for larcen Y On the latter point see also State v William- so N, 3 Heis K (Tenn) 483 "Larcen Y" In California, where the language of the statute was " with intent to commit grand or petit lar- ceny," the simple averment in the indictment, "with intent to commit larceny," etc, was held sufficient. People v Smith, 86Cal238 Also People v Shaber, 32Cal38 In Indiana the simple averment is also held probably adequat e Hunter v State, 29 Ind 80 In Iowa, likewise, in an indictment under the statute (Code, 2612). State v Jones, 10 Iowa 208 In Wisconsin no further descrip- tion is necessary in an indictment under a statute making it an offense to commit either petit or grand lar- cen Y State v Kane, 63 Wi S 267; Hal'l -v State, 48 Wi S 688 "Larce Y" But " with intent to com- mit larcey," omitting the , is a fatally defective averment.

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Co M,6 Met (Mas S) 239 Post Date: Sat, 26 Jul 2008 14:58:17 +0000
People v St Clair, 56Cal406; People v St Clair, 55Cal524 Sufficient Conformit Y In People v Hall, 94Cal595, it was held suffi- cient conformity with the language of the statute ( 459) describing the of- fense ' ' with intent to commit grand or petit larceny," for the indictment to use the words " with intent to commit grand and petit larceny" in charging the offens e " With the Felonious Intent to Steal," with the further allegation of "goods and chattels of said A in said store," etc, was held sufficient by the court in State v Woods, 31 La An N 269 See also Rex v Smith, R R C C 417 "Intent to Commit Theft." And in Summers v State, 9 Tex App 398, "intent to commit theft" is a suffi- cient averment, in an indictment for burglary with intent to commit the crime of theft, with no description of the property intended to be stole N See Josslyn ^.Co M,6 Met (Mas S) 239 MurdeRSee State v Brady, 14 Vt 356; Co M v Doherty, loCus H (Mas S) 56 Rap e "With intent to commit rape " was held a sufficient averment, without stating the circumstances or details of the crime, in People v Burns, 63Cal614 And in Co M v Doherty, 10 Cus H (Mas S) 52, the court held the averment "with intent to commit the crime of rape " suffi- cient, " considering the nature of this statute offense, that it is the actual breaking and entering a dwelling- house in the night-time, with intent to commit murder, rape, larceny, etc, and that nothing more is necessary than such intent, the party not being charged, or to be punished on this in- dictment for the actual commission of a rap e" In Bradley v State, 32 Ark 712, " with intent to commit a felony, to wit, rape on the body of A B," was held a sufficient averment.

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" Wilburn v State, 41 Tex Post Date: Sat, 26 Jul 2008 14:41:30 +0000
See 5, Intent to Commit Rape, infr A 1 "Felony" Insufficient. People v Nelson, 58Cal104, decides that the averment " with intent to commit the crime of felony," states no offense as intended to be committe d A similar averment in Portwood v State, 29 Tex, 47, was held not to con- tain the certainty required; nor was the offense so described as to enable the defendant to plead a judgment under such an indictment in bar of another prosecution for the same of- fense, as required by statut e " Larcen Y" Nor is the averment " with intent to commit larceny" suffi- cient, Lee v State, 56 Ga 477; nor "with intent to steal," Rodriguez v State, 12 Tex App 552 Must be Specifie d The felony intended must be specifie d 1 All Ingredients must be Lai d The indictment should set forth all the elements of the offense intended to be committed, correctly stating the sa Me 2 Limit to Particularit Y Yet it need not be as minutely and particu- larly stated as in an indictment for the offense itself 3 "Grand Larcen Y" Likewise in the case of the averment being " with in- tent to commit grand larcen Y" Ter- ritory v Duncan, 5 Mont 483 1 State v Lockhart, 24 Ga 420 In addition to those just cited, the following have been held insufficient descriptions, in the averment of intent: "With intent to commit a felony, to wit, theft." Wilburn v State, 41 Tex 238, where it was held that the facts constituting the offense should be state d "With intent to commit a felony, to wit, theft from a house," failing to charge the intent to commit the specific act under the circum- stances defined by the statute (Pas C Di g, art.

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58 2 Intent to Commit Post Date: Sat, 26 Jul 2008 14:27:42 +0000
2381) as necessary to con- stitute the offens e White v State, i Tex App 211 Eap e Also, under this head, the following averments have been de- cided not sufficiently descriptive in Texas: "With intent then and there to commit the crime of rap e" State v Williams, 41 Tex 98 See Allen v State, 18 Tex App 122 " With in- tent her, the said E v, violently and without her consent, then and there feloniously to rape and carnally know," was held not a sufficient aver- ment, in Brown v State, 7 Tex App 622 Short Averment, Followed by Descrip- tion in Same Count. But where the in- tent is alleged, with no further descrip- tion than the name of the felony, and this is followed by a detailed averment of the commission thereof in the same count, the latter is held sufficient to render the short averment of intent goo d See O'Brien v State, 27 Tex App 448 Thus in Johnson v Co M, 87 Ky 189, " with intent to commit a larceny," with a description of the larceny following in an averment for its actual commissio N Also, " with in- tent to commit theft," with a similar addition, Bigham v State, 31 Tex Cri M Rep 244; Coates v State, 31 TexCri M ' Rf Pz^'i, approving Williams v State, 24 Tex App 69 Also State v Sufferin, 6 Wash 107, where " with intent to commit grand larceny " was followed by a statement of the acts intende d 2 Mason v People, 26 N Y 200; Allen v State, 18 Tex App 122; State v Williamson, 3 Heis K (Tenn) 483 See i Wharton Pre C Indictments 370- Technical Term S The felony in- tended to be committed should be stated in technical term S Starkie CRP I (2d e d) 78 Statutory Ingredient S The felony intended must be described with all its statutory ingredient S Webster v State, 9 Tex App 75; Treadwell v State, 16 Tex App 643; Taylor z, State, 23 Tex App 639 See Reg v Wenmouth, 8 Cox C C 348 Language of Statut e It is sufficient for the indictment to follow the lan- guage of the statut e Mitchell v Co M, 88 Ky 349; Portwood v State, 29 Tex 47 More Particularity Require d In Portwood v State, 29 Tex 47, Donley, J , after enunciating this last rule, con- tinues: " But there are cases where more particularity is required, either from the obvious intention of the legislature or from the application of known principles of la W" And it was held defective to follow the lan- guage of the statute defining the of- fense as breaking, etc, with intent to commit a felony, etc See West v State, 35 Tex 91 3 Mitchell v Co M, 88 Ky 349; Burke v State, 5 Tex App 74; see Jenks' Case, 2 East p C 514 Contr A Taylor v State, 23 Tex App 639; Reed v State, 14 Tex App 666, hold that, in the averment of the felony intended, there must be a full description of the theft or felony, " with the same particularity as would be required in a separate prosecution for such felony or theft, independent of its connection with a burglar Y" Proof as Allege d Where the pleader departs from the safe generality, and particularizes the intent, the latter as thus narrowed must be specifically Legal Presumptio N Nor, where the intended felony is specified, is it necessary to aver that it is a felony ; this being a question of la W 1 (3) Same Offense in Different Count S The same offense may be stated in different ways in different counts of the indictment. 58 2 Intent to Commit Arso N When the intent is to commit arson, all the elements of that offense should be set forth in the indict- ment, as required by statut e 3 3 Intent to Commit Larceny rt.

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" 2 Lyons v People, 68 Post Date: Sat, 26 Jul 2008 14:14:43 +0000
,FORM IN GENERA L Where the felony intended to be committed is larceny, any of the three forms of the indictment already adverted to may be employed, using the allegation of intent, or actual commission only, or a combination of these tw O 4 prove d Jenks' Case, 2 East p C 514 And see Mason v People, 26 N Y 201; Allen v State, 18 Tex App 120; Black v State, 18 Tex App 128 In Copenhaven v State, 15 Ga 266, the intent was so framed as to involve proof of robber Y 1 State v Robertson, 32 Tex 159; and see Reg v Watkins, C M 264, 41 E C L 148; Mathews v State, 36 Tex 676 "Larcen Y" Nor is the word "lar- ceny " necessary to the indictment under a statute (Mas S 1839, C 31), prescribing punishment for a break- ing, etc, "with the intent to commit the crime of larcen Y" Josslyn v Co M, 6 Met (Mas S) 236; the court (Shaw, J) holding that " the word ' larceny ' is not oae of those terms of art which it is indispensable to use in an indictment, and as a substitute for which no synonymous word and no description or definition is admissibl e Feloniously to steal goods is larcen Y" "Feloniousl Y" Nor is "feloni- ously" necessary to be used in charg- ing the intent. Jane v Co M, 3 Mete (Ky) 18 Where Name of Offense Omitte d Where the intended felony is alleged descriptively, not by its name, this description must be sufficiently ade- quate to conform to statutory require- ment S Rex v Monteth, 2 Leach ( C C) 702 And see Murray v State, 48 Ala 675, etc; West v State, 35 Tex 91 In this last case, the aver- ment of intent was held insufficient, neither the language of the statute, nor its equivalent, being use d But the court remarked: " Had the indict- ment charged the defendants with entering the house with intent of com- mitting a felony, or of committing the crime of 'theft from a house,' or any other felony, charging it specifically, that might have been sufficient." 2 Lyons v People, 68 111 271 See VI I Joinder of Felonies, infr A 3 Pairo v State, 49 Ala 25 In this case the averment being that the defendant broke and entered, etc, " with intent to set fire to or burn the store " of A, the court held it fatal, not confirming to the requirements of the statute (Rev Code, 3698), from which it appeared that the burning must be done " wilfull Y" Duplicit Y Where the indictment alleged a burglarious breaking, with intent to set fire to a dwelling-house, that is, to commit arson, the court deemed it not obnoxious to the charge of duplicit Y State v Ely, 35 La An N 895 4 For last two forms, see \\\/ Join- der of Crimes, infr A See cases and au- thorities heretofore cited, under Aver- ment of Intent, for first two form S Better to Allege the Intent.

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