Laws

Tilly v State, 21 Post Date: Sat, 26 Jul 2008 18:50:54 +0000
i on or by that of other persons on his ac- count, or whether the proper owner has given such an interest to other persons, in the whole or in parts of the dwelling-house, as to constitute an ownership in such other person S" 2 Russell on Crimes (gth e d) 25 See also Webb v State, 52 Ala 423 Party in Occupancy, Possession, and Con- tro L The ownership is correctly laid in the party or parties having the oc- cupancy, possession, and control at the time of the alleged burglar Y Matthews v State, 55 Ala 65; Mark- ham v State, 25 Ga 52; State v Parker, 16 Nev 79; State v Outlaw, 72 N Car 598, citing and distinguish- ing State v Jenkins, 5 Jones (N Car) 430; Bauer v State, 25 Ohio St 70; State v Scripture, 42 N H 485; State v Cocker, 3 HarR(De L) 554 See Woodward's Case, i Leach Cri M L (2d e d) 243, not e An allegation of a person "control- ling" a railroad car is a sufficient one of ownershi P Hamilton v State, 26 Tex App 215; Pyland v State (Tex Cri M App, 1894), 26 S W Rep 621 Unoccupied Hous e The ownership- of an occupied house should, of course , Mere Possessio N In some of our states the rule has been somewhat modified, so as to permit the averment of ownership in any one in possession, if it is rightful as against the burglaR1 General and Special OwneRWhere there is one, other than the holder of the legal title, in occupancy and possession of the premises, the ownership is usually laid in him, if his interest is fixed, certain, and for a definite period, and if his occupancy is in his own right ; otherwise not. 2 be laid in the owner, as having the actual or constructive possessio N Co M v Reynolds, 122 Mas S 458 No Estate in OccupieRIf the ser- vant, clerk, or employee occupies the house, but has no estate therein as lessee, or tenant at will, or tenant at sufferance, ownership should be laid in the owneRState v Outlaw, 72 N Car 598, reconciling State v Jenkins, 5 Jones (N Car) 430 Proof of the ownership is essential, and a variance in evidence is fata L Woodward's Case, I Leach Cri M L (2d e d) 243; White's Case, 2 Leach Cri M L (2d e d) 216 1 Smith v People, 115 111 17 In Florida, in an indictment under Laws 1883, C 3463, it is not necessary to allege ownership in any particular individua L In the case before the court, the averment of the person in possession as owner was held suffi- cient. Tilly v State, 21 Fla 242 In Georgia, under the Penal Code, all that is required is that "the in- dictment should identify the dwelling broken and entered with burglarious intent, and that it should show that it was not the dwelling of the party so breaking and entering, but that it was occupied by the prosecuto R" Jones v State, 75 Ga 825 2 Webb v State, 52 Ala 423 In the General OwneR"Where the legal title to the whole mansion re- mains in the same person; there, if he inhabit it either by himself, his fam- ily, or servants, or even by his guests, the indictment must lay the offense to be committed against his mansio N" 2 East p C 500 Also i Haw K p C, C 38, 13, to the same point, holding that " if several persons dwell in one house, as servants, guests, or tenants at will, or otherwise, having no fixed and certain interest in any part there- of, and a burglary be committed in any one of their apartments, it seems clear that the indictment shall lay the offense in the mansion-house of the proprieto R" Need not Own the Fe e Webb v State, 52 Ala 423 SeeB Landlord and Tenant, infr A In the Special OwneRIf, however, distinct families be in exclusive occu- pation of the house, as their domicile, with no interference from the owner, or if persons have but a part of the house, having a distinct entrance from that of the owner (if he occupies the other part of the house), the part of the house broken into, it seems, should be laid as the house of the special owner or occupieR2 East P C 500; i Haw K p C, C 38, Common and Separate Entrance S The ground is taken, in I Haw K p C, C 38, 13, that it makes no difference whether the entrances are common or separat e But in 2 East p C 505, it is held to be essential that the oc- cupier, when averred as owner, must have a separate entranc e See State v Rand, 33 N H 216 See alsoB Landlord and Tenant, and (2) When Several ^Apartments, infr A CellaRIn i Haw K p C, C 38, 13, it is held that a lodger in a cellar may be laid as the owner thereof, whether or not the said cellar has any commu- nication with the rest of the hous e But see Kelyng J Rep 83 Gibson's Cas e 2 East p C 507, seems to sup- port the contention of Hawkin S Separation from Rest of Building Oc- cupation by CONSENT The averment of "storehouse of the Gulf Brewery" was proper where the storehouse occu- pied, by consent of the owners, the basement room where the burglary was committed, and the said room was separated by compartments and locked doors from the rest of the buildin g People S McCloskey, 5 P Ark CR Rep ( N Y)57, Need not Own the Fe e It is not nec- essary for the owner averred to own Laid in Bot H Frequently, in such cases, both the general and the special owners are laid, in the indictment, in appropriate language defining the relatio N 1 b LANDLORD AND TENANT (i) In Genera L The tenant, or one in the character of such, is the proper person to be averred as the owner in the indictment, where he is in exclusive possessio N And if he holds under a lease, he must be so lai d 8 the fee in the propert Y Rex v Mar- shall, i M C C 158 Nor even Pay Rent.

Autor of the post: Undefined

When one, though a ser- Post Date: Sat, 26 Jul 2008 18:36:04 +0000
Rex v Marshall , i M C C 158 SeeB Landlord and Tenant, infr A 1 Johnson v State, 73 Ala 483; Ashton v State, 68 Ga 25 A being the owner, and B being in possession, the averment, " the prop- erty of A, and used as a dwelling- house by one B," was held goo d See also Winslow v State, 26 Neb 308; State v Dan, 18 Nev 345 Where A was the owner, and B a clerk who slept in the house and pro- tected the property, the following was held a good allegation, " Dwelling- house, the property of A, then occu- pied byB" State v Williams, 90 N CaR724, discussing State v Potts, 75 N Car 129 In Different Count S Ownership may be alleged in both the general and the special owners, each in a different count. Johnson v State, 73 Ala 483 Proof In State v Dan, 18 Nev 345, a further allegation, in addition to that of ownership in A, that the prem- ises were occupied by a particular tenant B, was deemed immaterial, and not necessary to be prove d 2 Kennedy v State, 81 Ind 379; State v Rand, 33 N H 216; Thomas v State, 97 Ala 5 See i Haw K p C, 16, C 38; 2 EaSt p C 507 In McCrillis v State, 69 Ind 159, citing 2 Russell on Crimes 29, it was held a fatal variance to allege the ownership of a house in the owner of the fee, instead of the lessee in exclu- sive possessio N See Arc H Cri M P I (8t-h e d) 1097 for collection of authori- tie S But if the servant, clerk, or employee occupying the house broken into has no estate therein as lessee, tenant at will, or tenant at sufferance, it should be charged in the owner of the hous e State -v Outlaw, 72 N Car 598, and State S Jenkin S 5 Jones (N Car) 430, reconcile d Rent Free Tenant at Wil L Where one is permitted to live rent free in a house, the ownership is properly laid in him, he being a tenant at wil L Rex v Collett, R R C C 498 See Rex v Marshall, i M C C 158 Rent Manner of Payin g The man- ner in which the rent is paid does not change the rul e Kennedy v State, 81 Ind 379 See Martha Jones' Case, 2 Leach Cri M L (2d e d) 434, 2 East P C 504- Part of a Buildin g The ownership is correctly laid in a tenant who is in exclusive occupation and control of a distinct and separate portion of a buildin g In State v Rand, 33 N H 216, the ownership was held correctly laid in a savings bank which was a tenant of another bank occupying the rest of the building, but having a sep- arate outer door, the portion so occu- pied being a distinct part of the build- in g The savings bank had exclusive occupation of its rooms as tenant, and entered by another door than the owners', its door being used by other tenants al So See (2) When Several Apartments, infr A Servant. When one, though a ser- vant, stands in the character of a tenant, he should be set forth as the owner of the premises occupied by hi M In Rex v Jarvis, i M, C C 10, a servant lived in a house of his master's at a yearly rent, he being al- lowed to live there by reason of his servic e The ownership was held correctly laid in him, he being liable to distraint for rent.

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In Ashton v State, 68 Post Date: Sat, 26 Jul 2008 18:19:43 +0000
See Ashton v State, 63 Ga 25, infr A But in Rex v Stock, R R C C 185, a servant who occupied and paid hire for certain rooms in a house, being, with his family, the sole occu- pant of the premises said rooms so inhabited being part of the building in which the brewery business of the owner was conducted was not con- sidered by the court as a tenant of the premises, and the ownership was held (2) When Several Apartment S In general, if the tenant hires a part of the house, for his occupancy, actually divided from the rest and having a door of its own to the street, the ownership of the apartment so owned should be laid in said tenant. 1 correctly laid in the master and owneRSee (d) Master and Servant, infr A Sheriff The indictment correctly laid the ownership of a building in a sheriff who was holding the same un- der a writ of attachment, and occupied the house under a rental contract, the rent to be paid out of the proceeds of the sale of the goods so levied o N Lenhart v State (Tex Cri M App 1894), 27 S W Rep 260 Unnecessary Allegatio N Nor was it necessary 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 Watching Propert Y But the ownership should not be laid in a sheriff placed in a house to watch property on the night of the burglar Y Lenhart v State (Tex Cri M App, 1894), 27 S W Rep 260 Ownership in more Constant Kesident. In Ashton v State, 68 Ga 25, it was decided that where there is more than one tenant or resident at inter- vals, the ownership of the house should be laid in him who most uses it as a residenc e And it was proper- ly laid in A, who occupied one of the rooms of the house as a habitation very often, although he had also a home elsewhere, and although B oc- casionally lodged in one room of said house when visiting the place, and on such occasions was master of A 1 Haw K p C 38, 15; Kelyng J Rep 83-84; State v Rand, 33 N H 216 See People v McCloskey, 5 P Ark CR Rep ( N Y) 57- There is an important distinction made between cases where the owner who lets apartments resides under the same roof himself and where he does not.

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8 holding under a lease Post Date: Sat, 26 Jul 2008 18:04:17 +0000
i Haw K P L, C 38, 13, 14, fails to note the distinction, though Kelyng J Rep 84 doe S When the Owner is under the Same Roof with those to whom he lets apart- ments, and there is but one outer door at which he and his lodgers enter, the ownership of the apartments should be laid in said owner, 2 Russell on Crimes (gth e d) 36; Rex v Gibbons, R R C C 442; even though he resides in said house constructively only, Rex v Gibbons, R R C C 442 See Rex v Sefton, R R C C 202 And though the inmates have several rooms in a house, of which rooms they keep the keys, and inhabit the same severally with their families, yet if they enter the house at one outer door with the owner, these rooms cannot be said to be the dwell- ing-houses of the inmates, but that of the owneR2 Leach Cri M L (2d e d) 85, not e Contr A Where there is a distinct outer door, see State v Rand, 33 N H 216 Where the Owner does not Reside under Same Roof, or where he and his lodgers enter at different outer doors, the apartments are properly considered the mansion-house of each lodger, 2 Russell on Crimes (gth e d) 36 ; as where two or more rent different parts of the house, and the whole between the M 2 Russell on Crimes (gth e d) 37 See Reg v Eye, 9 A d E L 670, 36 E C L 239 Also Rex v Bailey, i M C C 23; Rogers' Case, 2 Leach Cri M L (2d e d) 84, 2 East p C 506; Carroll's Case, 2 Leach Cri M L (2d e d) 205, 2 East p C 506 Also Grapshaw's Case, i Leach Cri M L 427, where A, one of three tenants in- habiting the whole of the house be- tween them, with one outer door in common to all the inmates, rented the ground floor and a single room up one flight of stair S A room broken open on the ground floor was properly laid as that of A 2 Leach Cri M L (2d e d) 333, 2 East p C 506 Also People v Bush, 3 P Ark CR Rep ( N Y) 552 Error to Lay Ownership in Two Occupy- ing Distinct Part S In Jones's Case, 2 Leach Cri M L (2d e d) 434, 2 East P C 504, the ownership was held to be improperly laid in A and B, where they occupied separate and distinct parts of the same house, with no in- ternal communication and with sepa- rate doors opening on the street, even though originally the two parts were one and the same dwelling-house, and communicating, and though the rent and taxes were paid jointly out of the partnership fun d Although Proof Fails to Disclose which C ROOMS IN PUBLIC HOUS e In an indictment for burglary in the rooms of an inn or a hotel, the ownership of such rooms is usually laid in the landlord of the house, not in the lodger in the room S 1 Part Stolen fro M And in Co M v Thompson, 9 Gray (Mas S), 108, under Rev Stat, C 133, n, the ownership of a shop was held correctly laid in one of two tenants thereof, each pay- ing rent and each occupying a dis- tinct part of the shop, although the proof did not disclose which part was burglarized and stolen fro M Entrance Common or Distin Ct The authorities, almost without exception, sustain the general rule that where there is a distinct entrance or outer door for the tenant the ownership should be laid in hi M 2 East p C 505; 2 Russell on Crimes (gth e d) 36, note 37; Fenn v Graften, 2 Bin g N Ca S 617, 29 E C L 433, 3 Scott 56; State v Rand, 33 N H 216 ; see also cases cited, supra, under heading Where Owner does not Reside under Same Roof In Monks v Dykes, 4 M W 567, the landlady was held the proper per- son to charge ownership of A's room, A being a lodger in her house, and she keeping the key of the outer dooR2 Russell on Crimes (6th e d) 36, not e But where a father, owning the whole building, of which the shop was a part, let the latter, with a passage and cellar, to his son, but used a' part of the building exclusively as his own dwelling-house, the ownership of the shop was properly laid in said father, though there was a distinct entrance theret O There was also communica- tion with the father's cellaRRex v Sefton, R R C C 202 Common Entranc e Where the owner and the tenant use a common entrance or outer door, the ownership of the apartments of the latter is usually laid in the formeR2 East p C 500, 505; 2 Russell on Crimes (gth e d) 36; Rex v Gibbons, R R C C 422; 2 Leach Cri M L (2d e d) 85; Kelyng J Rep 83, 84 See State v Betsall, II W Va 703 ' Private Contra Ct This rule holds, unless, by reason of a private contract between the parties, the dwelling- house has been severed so as to make several dwelling-houses, i Hale p C 557- Contr A In People v St Clair, 38 Ca L 137, under an indictment for breaking and entering a room or apartment, it was held correct to charge the ownership thereof in the sublessee of one who leased and had general supervision and control of the whole house, the subtenant occupying his room as a lodger, though both used the same outer door in commo N Subtenant. This last case seems to be contrary to the decision in Parmen- ter's Case, 2 Russell on Crimes (2d e d) 38, I Leach C C 537, not e In this case A and B were partners; A was the lessee of the whole premises, and paid all the rent and taxe S B had an apartment in the building, paying A a certain amount for board and lodging, as well as a proportion of the rent and taxes for the shop and warehouses on the premise S Bur- glary being committed in the shop, the court held that the ownership was properly laid in A, the lessee of the whol e Though Both Have Key S And where A, the lessee of the premises, allowed B, for a consideration, to keep his horse and feed in the barn, both using a common outer door and carrying keys thereto, the ownership was held properly laid in A State v Betsall, ii W Va 729 Buildings within a Common Inclosure Adjoining Buildings with no Internal Communicatio N Though a dwelling- house and shop adjoining had no in- ternal communication, but were within a court with a wall surrounding it, access to both house and shop from the outside being through a wicket- gate in the wall, it was held that the ownership of the shop was properly laid in A, the owner of both build- ings, who lived in the dwelling ad- joining; and this notwithstanding the fact that the shop was rented to B, who also occupied rooms in A's hous e Gibson's Case, 2 East p C 507 1 2 East p C 502 For a similar ruling in regard to a hotel, see Rodg- ers v People, 86 N Y 360 See also Burgess's Case, Ke L 27 Lease for a Definite Perio d But in State v Johnson, 4 Wash 593, one d MASTER AND SERVANT (i) In MasTer The occupation by one who is a servant, when it is in his capacity as servant, and is for the master, is considered as occupation by the masTer There- fore the ownership of premises so occupied should be laid in the masTer 1 Servant in Possession of Part only of the Buildin g Where the servant has possession and control of part only of a building of the master, the ownership of such building is properly laid in the master, whether he resides in any part of it or not. 8 holding under a lease of a room in a hotel for a definite period of time, and making it his home, was correctly laid as the owner of the roo M A Several IntereSt If each lodger Though Servant Pay Kent.

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Maynard's Case, 2 East Post Date: Sat, 26 Jul 2008 17:53:42 +0000
It makes no difference that the servant paid hire for certain rooms in the house, and that he and his family were the sole inhabitants of such house, it be- has a several interest, as in the case ing the building in which the brewery of inns of court, the ownership is business of the owner and master was properly laid in eac H Burgess's Case, Ke L 27 Servant in an In N In Georgia a ser- vant of an inn, occupying a room therein, was held, under the code, to be correctly laid as the owner of said roo M Jones v State, 75 Ga 825 1 2 East p C 500, 501 Officers of the East India Company were included in this rule, in the case of a burglary in a house belonging to the East India Company; and it was improper to lay the ownership in said officers or servant S Hawkins' Case, Foster's Crown L 39, 2 East p C 501 Servant in Entire Contro L Though the servant occupied and had entire control of the premises, and kept the key thereof, and the building was sep- arate from the dwelling-house of the master, it would not have been error to lay the same in the masTer Rex v Rees, 7 C p 568, 32 E C L Contr A In Georgia an indictment alleging a room in an inn, occupied by a servant thereof, as being owned by said servant, was held goo d Jones v State, 75 Ga 825 2 Rex v Gibbons, R R C C 422 In Rex v Stock, 2 Taunt 340, the ownership of the office was held prop- erly laid in A, B, and C, being owned by them and used to transact partner- ship business, though none of them lived therein, and though a servant lived overhead in rooms which com- municated with those below by a trap- door and ladder, of which he kept the key, and which was never fastened, and though the servant had a separate entrance without. conducte d Rex v Stock, R R C C 185 Fatal Defe Ct And it was held a fatal defect to allege the ownership of a part of the building, not occupied by the servant but reserved for other purposes, in said servant, who occu- pied other rooms in the buildin g The proprietor only could be alleged as owneRRex v Wilson, R R C C 115 The same opinion was arrived at in Reg v Courtenay, 5 Cox C C 218, where the ownership had been laid in A, who was in the service of B, and lived in a house close to P's place cf business, paying nothing for the occu- pation thereof; while B paid the rent and taxes and used part of the house as storerooms, though he did not re- side there himself Occasional Habitatio N The owner- ship of a barn was correctly laid in A, who resided in the dwelling-house and owned and had under one roof all the outbuildings and house, together with a cottage in which B live d The fact that B slept for several nights in the barn, to catch the burglar, made no difference, said the court, not even if B had held the cottage he resided in by regular demise from A, which he did not. Maynard's Case, 2 East P C 501 Contr A The ownership of a loft over a coach-house and stable prop- erty was held properly laid in the coachman, who occupied one of the rooms with his family, and this though he paid no rent therefor, nor were the rooms rated in the parish books as dwelling-house S Turner's Case, 2 Leach Cri M L (2d e d) 249 (2) In Servant.

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A work- man, who Post Date: Sat, 26 Jul 2008 17:42:48 +0000
The servant is properly laid as the owner of the premises in cases where, the master occupying none of the premises, the servant's occupation is in the character of a tenant, or is exclusive and entire, and for his own benefit, even though such exclusive occupation is by reason of his position as servant or for the purpose of such servic e 1 e AGENTS AND CONTRACTOR S Where the premises are in possession of one who is an agent or a contractor, most of the cases hold it proper and correct to lay such ownership in such perso N 2 1 Tenant. In Rex v Jarvis, i M C C 7, a servant lived in a house (on the premises) at a yearly rent, though he was allowed to reside there because of his servic e The court held that the servant stood in the character of a tenant, since the owners might have distrained upon him for his rent, and could not have arbitrarily removed hi M Therefore his occu- pation could not be deemed their S Exclusive Possession, Rent Fre e And in Rex v Camfield, i M C C 42, the ownership was properly laid in the servant who had exclusive possession of the house, which was not parcel of any premises that his master occupied, though the servant lived free of rent, and occupied the house for the pur- pose of his service of collecting toll S House Belonging to Master's LessoRThere is still more reason for so lay- ing the ownership when, as in the case of Rex v Camfield, I M C C 42, the house he occupied belonged to one who leased it to his masTer Occupation for Own Benefit. A work- man, who, with his family, occupied a cottage of his employer without pay- ing rent or taxes, and lived there principally for his own benefit, was the proper party in whom to lay the ownership thereof Rex v Jobling, R R C C 525 So also was an old servant who occupied his master's house, paying no rent therefor, in consideration of former services to his master for whom he did no work, and receiving an allowance every week as an old servant.

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And a ser- vant put Post Date: Sat, 26 Jul 2008 17:24:04 +0000
Rex v Ballard, 2 Russell on Crimes (gth e d) 32 Occupation as Servant. Rex v Rees, 7 C p 568, 32 E C L 633, holds it proper to lay the ownership in a ser- vant who had possession of a house of his master, having entire control and keeping the key, the house being sep- arate from a dwelling-house of the master (though it might have been also laid in the latter). And a ser- vant put into a house to take care of it till it could be let, paying no rent and being furnished coals by the master, was considered a proper person in whom to lay the ownership, notwith- standing that she had occasionally been the servant of the owner of the house for over thirty years, for which she had always been pai d Moulder's Case, 2 Russell on Crimes (gthe d)33 2 Buchanan v State, 24 Tex App 200 Also People v Smith, i P Ark CR Rep ( N Y) 329, where one who hired and paid for a shop, of which he had charge, was correctly laid as the owner of it, although it was used in the business of another, of whom the first was Agent Principal Paying Kent.

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And in State v Davis Post Date: Sat, 26 Jul 2008 17:12:37 +0000
Though a trading company paid the rent and taxes and leased the house, yet the ownership thereof was properly laid in an agent who, for the sole purpose of carrying on the company's business, resided therein with his famil Y Rex v Margett, 2 Leach C C 930, 2 Rus- sell on Crimes (gth e d) 31 ContractoRIn an indictment under Rev Stat, 44^9, the ownership, laid in one who was interested in the build- ing only as contractor for its construc- tion, was uphel d Clark v State, 69 Wi S 203 Contra Agent of Employe e But it was an insufficient allegation to lay the ownership of a dwelling-house in A, who was put in to take care of the premises by B, who did work as car- penter for the owner S Rex v Raw- lins, 7 C p 150, 32 E C L 473 In Picket'sCase, 2 East p C 501, John Picket was indicted for burglary and theft in the dwelling-house of the East India Compan Y The house was in- habited by the officers and servants of this company, and belonged to the latTer The court held that the own- ership was correctly laid in the com- / JOINT OWNER S The ownership of a building is properly laid in several partners, if all of them own the building, though only a part reside therein ; or if only a part own it, but all occupy the sa Me 1 g HUSBAND AND WIFE In Husban d It was an invariable rule at the common law, and in most cases still remains the law at the present day, that the ownership of a dwelling-house should be laid in the husband, the head of the family; and an indictment substi- tuting the wife for the husband is fatally defectiv e* pany, and it would have been improper to lay it in the officer S See also Haw- kins' Case, Foster Crown L 39 Mansion-house of the Kin g The own- ership of an apartment in the palace at Whitehall was correctly laid in the kin g Williams' Case, i Hale p C 522 Also the Chelsea Hospital, it was held, must be laid as the mansion- house of the kin g Peyton's Case, 2 East p C 501 See Burgess's Case, Ke L 27 1 Joint Property of All, One Residing Therei N Ownership laid in all the partners, the house being the joint property of all, and the business being carried on therein, though only one resides in it, is a correct averment. Rex v Athea, i M C C 329, 2 Rus- sell on Crimes (gth e d) 27 Property of Part, All Occupying the Hous e In State v Rivers, 68 Iowa 6n, A, B, and C were averred as the owners of a building, which was found to belong to A and B, but to be occu- pied by the firm composed of all thre e The averment was held sufficient. And in State v Davis, 77 N Car 490, where A owned the house and fur- nished the use of it to the business, it was sufficient to lay the ownership in A and B, the partner S Partner a Mere LodgeRWhere one of two partners is the lessee of a shop and a house, and the other partner occupies a room in the house, the lat- ter is regarded as a lodger only, and the ownership is rightfully laid in the formeRParminter's Case, 2 Russell on Crimes (gth e d) 38, i Leach C C 539, note A Joint Owners Where so Alleged, though Ownership in One Onl Y Though the title to a storehouse was in A alone, but both A and B carried on business therein as merchants, the averment of ownership in A and B jointly was sufficient to support a con- victio N White v State, 49 Ala 344 3 Enc Y P I Pr 49 7 ( To the same effect see Mulrooney v State, 26 Ohio St 326 2 Morgan v State, 63 Ga 307; Jackson v State (A La 1894), 15 So Rep 344- Legal Title in Wif e The rule holds though the legal title of the house is in the wife, Young v State (A La 1894), 14 So Rep 872; State v Short, 54 Iowa 392; "for whatever the wife hath is the husband's in law, and it cannot be said to be t!i^ wife's house," Farre's Case, Ke L 43, 2 East p C 503 It was decided to be properly laid in the husband even though the house was hired by the wife, who paid the rent out of her separate property, and though she lived apart from her hus- band, on an income from property held for her separate use, the husband having never entered the hous e Rex v French, R R C C 491 Where Wife Lives Separat e The hus- band is the proper person to allege as owner of the house, even though the wife lives therein alone and pays rent.

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In Reg -v Bridges Post Date: Sat, 26 Jul 2008 16:53:05 +0000
In Rex v Wilford, R R C C 517, it was correctly laid in the husband, where the house belonged to him and he paid the ground rent and taxes, but never lived therein; and though his wife was permitted there to live in adultery with another, who paid the housekeeping expenses, and the hus- band suspected such criminal inter- course when he allowed her to live separate from hi M Though the Wife Takes the House, and lives separately therein, the husband, should be laid as the owneRRex v Smyth, 5 C p 203, 24 E C L 279 Where the wife paid the rent, and lived separate, the rule was unaltere d Farre's Case, Ke L 43, 2 East p C 503 Also Rex v French, R R C C 491 Contra, see Ducher v State, 18 Ohio 316 Desertion by Husband does not cause any change in the rul e Where the In Wif e There are some cases, however, supporting the view that, where the legal title to, or the exclusive possession of, the dwelling-house is in the wife, she may be laid as the owner thereof 1 VI I AVEEMENT OF INTENT 1 In General A AVERMENT ESSEN- TIA L The intent with which the house was broken and entered husband hired the house, and was liable for the rent, he was correctly laid as the owner, although he left the house and deserted his family be- fore the burglary was committe d Co M v Dailey, no Mas S 503 And though he deserts his wife and goes beyond the seas for four years, and the wife is possessed of the premises as a single woman and sole tradeRBogget v Frier, n East 302 Wife a Sole Trader, and in possession of the premise S Bogget v Frier, n East 302 And see Reg v Bridges, i Cox C C 261 Husband a Felo N Though the hus- band had been convicted of felony, and was still in prison under sentence, and the wife was in possession at the time of the burglary, the court held it improper to lay the ownership of the house in the latTer Reg v White- head, 9 C p 429 (Ser g Pettit's e d 175). Husband an Insolvent. In Reg -v Bridges, i Cox C C 261, 2 Russell on Crimes (gth e d) 36, the husband -was an insolvent, but paid the taxes on the house, and lived there with his wife, though a daughter had taken the house, owned the furniture, and carried on a business with the wife, but resided miles distant.

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And in some of our Post Date: Sat, 26 Jul 2008 16:40:17 +0000
The owner- ship of the house was properly laid in the husban d Where Daughter Takes the Hous e See Reg v Bridges, i Cox C C 261 1 Separate Propert Y In 2 Russell on Crimes (gth e d) 26, is used this language: " If a case should arise in which the law would adjudge the sep- arate-property of the mansion to be in the wife, she having also the exclusive possession, it should seem that in such case the burglary would properly be laid to be committed in her man- sion-house, and not in that of her hus- ban d" See also 2 East p C, C 15, 16, p 504 In Georgia, if the legal title is in the wife, and she lives with her husband, the ownership may be laid in eitheRYarborough v State, 86 Ga 396; Har- rison v State, 74 Ga 801 See Goode v State, 70 Ga 755 In Ohio it was held sufficient, in Ducher v State, 18 Ohio 316, to lay the ownership of the house in a mar- ried woman who lived apart from her husband and had the occupancy and control of the dwellin g The court (Spalding, J) remarked: "We adopt the more simple rule that the person in the visible occupancy and control of the premises, at the time of the burglary, may be set out in the indict- ment as the owner, whether that per- son be a tenant of the freehold for years, at will, or by sufferance;" etc In South Carolina, if the title to the property is in the wife, the ownership may be laid in either the wife or the husban d State z/Trapp, 17 S Car 467 Contra Wife's Dower IntereSt When the interest of the wife in the property is one that may never vest, as her dower right, it is correct to charge the property as owned by the husban d State v Wincroft, 76 N CaR38 Miscellaneou S The ownership of a railroad car was properly laid in a railroad company which was in pos- session, occupancy, and control there- of, though the legal title was in an- otheRState v Parker, 16 Nev 79 If the person controlling it is stated, this is sufficient averment of owner- shi P Hamilton v State, 26 Tex App 215; Pyland v State (Tex Cri M App, 1894), 26 S W Rep 621 Nor need the right in which the person stated to control it was occupying it be allege d Pyland v State (Tex Cri M App, 1894), 26 S W Rep 621 Of an Estat e It is not sufficient to aver the ownership as "the property of the estate of the late A" Beall v State, 53 Ala 460, overruling An- derson v State, 48 Ala 665 Contra, State v Franks, 64 Iowa 39 Ownership Wrongly Alleged in Several is not so defective as to prevent a conviction if the title is in one onl Y White v State, 49 Ala 344 Also Mulrooney v State, 26 Ohio St 326 being an essential element of the crime of burglary, it must be alleged in the indictment. 1 Averment of Felony insufficient. And in some of our states it is held that the averment of the commission of a felony is not a sufficient averment of intent, and that the latter must be expressly allege d 2 Actual Averment Sufficient.

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