Laws

See Reed v State, 14 Post Date: Sat, 26 Jul 2008 21:12:16 +0000
The omis- sion to aver an entry is fata L Nor will " feloniously and burglariously, forcibly burst and did break," suffic e State v Whitby, 15 Ka N 402; Pines v State, 50 Ala 153, under the indict- ment based on Rev Code, 3695 Several Mode S Where several modes are mentioned in the statute, some one of them, including the fact of entry, must be alleged in the indictment. Hamilton v State, u Tex App 119 See Iv 2 (3) (d) Other Allegations, supr A Allegation of Forcible Entr Y An al- legation that the entry was by force, without necessarily alleging a break- ing, was held sufficient to charge a night-time breakin g Carr v State, 19 Tex App 635; Garner v State, 31 Tex Cri M Rep 22 Surplusage Breakin g The fact that the indictment alleged breaking as well asenteringdid not prevent a conviction for the offense of entering a house in the night-time, etc State v Moore, 12 N H 42 See also State v Hunt- ley, 25 Oregon 351 2 Burke v State, 5 Tex App 76; also State v Dan, 18 Nev 345; State v Huntley, 25 Oregon 351; Smith v State, 22 Tex App 350 But see Co M v Carrol, 8 Mas S 490; Melton v State, 24 Tex App 287 3 Reed v State, 14 Tex App 666, referring to Sullivan v State, 13 Tex App 462; Black v State, 18 Tex App 124; Smith v State, 22 Tex App 350; Taylor v State, 23 Tex App 639; Sampson v State (Tex Cri M App, 1892), 20 S W Rep 708 Though in Mace v State, 9 Tex App no, cor- recting Brown v State, 7 Tex App 619, it would appear that an averment of lack of consent of the occupant is requisit e But a sufficient allegation of want of consent appears in the averment that the defendant did burglariously break and enTer Sullivan v State, 13 Tex App 462, overruling Brown v Stale, 7 Tex App 619, on this point. See Reed v State, 14 Tex App 666 And an averment of a forcible entry C FORC e When force is an essential element in the offense, it need not be expressly alleged, if necessarily implied, unless, indeed, it is the distinguishing element of a higher grade of the offens e 1 d FORCE, THREATS, OR FRAU d Where, by statute, a bur- glary is constituted by entering a house by " force, threats, or fraud," etc, the effect of charging in the indictment "by force," simply, is to confine the proof to that manner of effecting the entr Y 2 will also supply the place of the alle- gation of nonconsent to the entr Y Buntain v State, 15 Tex App 485; Langford v State, 17 Tex App 451; Summers v State, 9 Tex App 397 See also State v Williams, 41 Tex 98, where the court held that "the charge of an entry with force, and with a felonious intent, negatives the pre- sumption of consent by the owner or occupant.

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Nor will the allegation Post Date: Sat, 26 Jul 2008 20:56:57 +0000
" Brown v State, 7 Tex App 619, holding the contrary view, has been overrule d See VI I3 H Special Statutory Requirements, infr A 1 In Shotwell v State, 43 Ark 345, the allegation "feloniously, wilfully, and burglariously did break and en- ter," was held equivalent to the lan- guage of the statute, " wilfully, mali- ciously, and with force did break and enTer" Breakin g The word breaking nec- essarily includes force, and is a suffi- cient averment thereof Sullivan v State, 13 Tex App 462; Mathews v State, 36 Tex 675 In Cunningham v Co M (Ky, 1890), 13 S W Rep 104, the averment " wilfully, feloniously, and malicious- ly broke," etc, is good without the use of the word " forcibl Y" Instructions to Jur Y When the stat- ute enumerates several modes of breaking and entering, and the in- dictment alleges one of them (by force), it is error for the court to in- struct the jury on any of the modes of commission except the one by forc e Buntain v State, 15 Tex App 485, citing Weeks v State, 13 Tex App 466, to the same point. Element of More Heinous Offens e But when the force required to be used is an actual violence, such as is essential to the aggravated offense, an express allegation of force is nec- essary in the indictment. Nor will the allegation of breaking suffic e State v Robertson, 32 Tex 159 Increased Punishment.

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State v Mor- gan, i Post Date: Sat, 26 Jul 2008 20:45:59 +0000
And to war- rant an increased punishment for the use of force, it must be averre d If it is not averred under those circum- stances, it is error for the court to instruct the jury that the increased punishment might be assessed if the defendant " effected the entry by forc e" Hobbs v State, 44 Tex 353 Surplusag e If a breaking is charged in the indictment, and it is not a nec- essary element of the offense, the alle- gation is immaterial and is surplusag e State -v Moore, 12 N H 42; State v Huntley, 25 Oregon 351 With Forc e Also, where an indict- ment alleged a breaking and entering with force, "with force" is an imma- terial allegation for purposes of proof State v Dan, 18 Nev 345 Contr A Melton v State, 24 Tex App 287, which case holds that act- ual force, whether necessary to aver or not, when alleged, must be proved as lai d Yet see Smith -v State, 22 Tex App 350, as to when such alle- gation may be rejected as surplusag e 2 Summers v State, 9 Tex App 396 It is not essential to charge all three method S Summers v State, 9 Tex App 396; also Mathews v State, 36 Tex 675 Forc e For sufficient allegation of force, seeB Want of Consent, supr A Frau d The allegation that the de- fendant " fraudulently did break and enter," is an insufficient averment of the use of frau d Sullivan v State, 13 Tex App 462 Reversible ErroRAnd it was held reversible error for the court, in the trial on this indictment, to charge the jury on the law of entry by fraud only, that method not having been alleged (properly) in the indictment; Sullivan v State, 13 Tex App 462; for when the indictment alleges but one of the modes of effecting entry , e OTHER ALLEGATION S Other allegations descriptive of the elements of breaking and entering are given in the note S 1 V I AVERMENT OF OWNERSHIP OF BUILDING 1 In General The General Rule at present is, as it was at common law, that the ownership of the building broken into must, if known, be stated in the indictment. 2 Under statute S Under statutes the courts usually hold the same rule to exist, unless the wording of the statute admits of the contrary constructio N 3 it is error for the court to instruct the jury on any of the other mode S Buntain v State, 15 Tex App 485, siting Weeks v State, 13 Tex App 466 1 "The Doors and Windows Being Open" Railroad CaRThe statute was: "Whoever * * * without force, (the doors and windows being open,) en- ters into any * * * railroad car * * * with intent * * *, shall be deemed guilty of burglar Y" The indictment thereunder left out an averment that the doors and windows were open, alleging, however, an entry with forc e Held, a defect of form onl Y Brennan v People, no 111 535 Nor could this defect be taken advantage of after verdi Ct Brennan v People, no 111 535 Without Being Armed or Committing Assault Section 851, Rev Stat, de- fines an offense of breaking and en- tering, with intent to kill, "a dwell- ing-house, without being armed with a dangerous weapon * * * and with- out committing an assault upon any person," etc An indictment under this section need not contain the aver- ments "without being armed," etc, and "without committing an as- sault," they being merely used to em- phasize the difference between the of- fense in section 850 and this on e State v Newto N 30 La An N 1253 Enter without Breakin g Where, un- der a statute punishing those who, with intent to commit any -felony, " shall in the night-time enter without breaking, or in the daytime break and enter a warehouse," it was held that an allegation of an entry in the night, by breaking, would not be properly included thereunder, and the sen- tence must be as at common la W Co M v Carrol, 8 Mas S 490 In the Presence of, etc In an in- dictment for a forcible entry into a house other than the dwelling-hous e which, under the statute, should have charged " that the offense was com- mitted in the presence of the prose- cutor, or, at least, of some member of his family," an allegation that the entry was into "the house of A, B being present, and forbidding the same," and omitting an averment that B was some member of the family, was held insufficient. State v Mor- gan, i WinSt (N Car) 248 2 Hale p C 549; Starkie CRP I (2d e d) 188, 189; 3 Chitty Cri M Law (4th A M e d) Mo The name of the owner must be stated " with such certainty to a com- mon intent, as is, in general, necessary in the description of the party who has sustained the injur Y" Graves v State, 63 Ala 134; Johnson v State, 73 Ala 486; State v Fockler, 22 Ka N 542; Winslow v State, 26 Neb 308; Jackson v State, 55 Wi S 589, holding that it should be explicitly state d Contra, see Ducher v State, 18 Ohio 316, and infr A 3 Reg v Jarrald, 9 Cox C C 307, where it was held necessary for the offense in 24 25 Viet, C 95, 58 Wilson v State, 34 Ohio St 203, hold- ing that ownership must be laid, though the statute does not require it expressly; Webb v State, 52 Ala 423; Beall v State, 53 Ala 460, overruling Anderson v State, 48 Ala 668, which last case expresses an opinion similar to one held in Murray v State, 48 Ala 681, that the allegation is not a char- acteristic of the offense, but is only necessary to point out the house for purposes of identificatio N See infra for particular rulin g To the same point as Beall v State, 53 Ala 460, see Graves v State, 63 Ala 134; Johnson v State, 73 Ala 486 See also State v Morrissey, 22 Iowa 158, where it is held that the allega- tion of the name of the owner is es- sential in an indictment for the offense Ownership in Estat e The averment of the ownership as in an estate of a certain person has been held insufficient.

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5 Cit Y "The city Post Date: Sat, 26 Jul 2008 20:33:03 +0000
1 Name of Owner Unknow N Where such is the case, it should be so stated in the indictment. 2 Proof Ownership of the building must be proved as laid; 3 even though such ownership as averred be needles S 4 2 How Allege d The averment of ownership must be certain and definite; but usually the indictment need not contain minute particulars, nor matters of description or evidenc e A CHURCH, CITY churc H The ownership of a church is essential to be averred ; a mere description of it will not be sufficient. 5 Cit Y "The city hall of the city of Charleston " is a sufficient averment of ownership of such building in that cit Y 6 in Rev Stat1860, 4235, because it is the name of the person injured, and is materia L See Willis v People, 2 111 399 And a similar ruling is made in Co M v Ferris, 108 Mass, i, for the offense in Ge N Stat, C 161, 12; the court (Morton, J) remarking (the alle- gation being omitted): "It is clear that this indictment is fatally defec- tive, unless the statute under which it is brought can be construed so as to make it criminal for a person to break and enter his own house with a felo- nious intent;" but "the terms bur- glary, breaking and entering, and stealing, from their nature, imply that the crime designated thereby can only be committed upon the property of anothe R" In Co M v Reynolds, 122 Mas S 458, the requirements for the allegations do not seem to be as strict as those required in the cases above cite d " For the purposes of identification merely, and not to give a legal char- acter to it as a dwelling," is the only reason for the allegatio N (Note that the language of the statute was "break and enter a building," simpl Y) Rule Modifie d In People v Parker, 91Cal91, while the allegation in the particular instance was held essential, yet the court (Garoutte, J) said : " While in charging the offense of burglary it may not be necessary in all cases to allege ownership of the property entered, yet in this case it was a necessary allegation, for it con- stituted the entire and only description of the bar N" In Johnson v Co M, 87 Ky 191, it is held that the ownership need not be described in the indictment with more precision or certainty than is necessary to inform the accused of the actual of- fense charged against him, and to bar a second conviction therefoRSee Co M v Reynolds, 122 Mas S 458, supr A The technical strictness required at common law is not necessar Y Wilson v State, 34 Ohio St 203 Orego N For the breaking defined in Hill's Code, 1760, the indictment need not aver the ownership of the buildin g State v Wright, 19 Oregon 258 1 Beall v State, 53 Ala 460, over- ruling Anderson v State, 48 Ala 667, held such an allegation sufficient.

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Johnson v State, 98 Ala Post Date: Sat, 26 Jul 2008 20:21:49 +0000
But in State v Franks, 64 Iowa 39, the allegation, "belonging to and the property of the estate of W F R," was held sufficient, although the court remarked that " it probably would have been more precise if the pleader had charged that the dwelling-house was the house or dwelling of those who actually resided therei N" 2 State v Morrissey, 22 Iowa 158 3 Beall v State, 53 Ala 460 Berry v State, 92 Ga 47 4 Berry v State, 92 Ga 47 Contr A State v Tyrrell, 98 Mo 354, holds that though B is the owner, it is immaterial that the ownership was laid in A In Wilson v State, 34 Ohio St 199, it is held that ownership need not be proved with the technical strictness required at common la W 5 " The Saint Bridget's Church and Meeting House" is insufficient, being merely descriptive of the churc H Wilson v State, 34 Ohio St 203 6 Co M z Williams, 2 Cus H (Mas S) 587 b CORPORATIO N When the ownership is in a corporation, the simple averment of property in such corporation, stating its corporate name, is sufficient. 1 C COUNT Y The ownership, laid as " a certain dwelling-house: to wit, the infirmary of Morgan county," was held a sufficient averment of property in the count Y 2 d PERSONS in Genera L When an individual is the owner of the building, the name of such person, stated with accuracy, must be averred in the indictment, the usual averment being "dwelling 1 Johnson v State, 98 Ala 57; Peo- ple v Henry, 77Cal445; State v Emmons, 72 Iowa 265; Co M v Mo- riarty, 135 Mas S 540 See also Hat- field v State, 76 Ga 499 Stockholders Need not be Allege d It is not necessary, in addition to the corporate name, that the names of the 'stockholders or members of the cor- poration be set forth in the indictment. Johnson v State, 98 Ala 58 It mat- ters not whether the stockholders be one or many individuals, or another corporatio N See also People v Henry, 77Cal445 Cured by Verdi Ct The failure to set forth the constituent members of a company is not a substantial error, to be taken advantage of after verdi Ct Hatfield v State, 76 Ga 499 See note, Miscellaneous Averments, infr A Inquiry Impertinent.

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Corporate Existence Implie d Post Date: Sat, 26 Jul 2008 20:02:05 +0000
No inquiry as to who are the stockholders, or as to their management or operation of the corporation, is permissibl e Johnson v State, 98 Ala 58 Fact of Incorporatio N If the name of the corporation is stated, the fact that such is a corporation, and other mat- ters relating to incorporation, need not be stated in the indictment. People v Henry, 77Cal445; State v Shields, 89 Mo 259; Fisher v State, 40 N J L 169; Burke v State, 34 Ohio St 79; Hamilton v State, 34 Ohio St 82 (in view of Code Civ Pro, 66 Ohio Laws 301, 90, and 74 Ohio Laws, 334). Corporate Existence Implie d The cor- porate existence is implied without being specially averre d Norton v State, 74 Ind 337 Cured by Verdi Ct The omission of the allegation of a body corporate is not a substantial error, to be taken advantage of after verdi Ct Hatfield v State, 76 Ga 499 Such Averment is Surplusag e Craw- ford v State, 68 Ga 822 Contr A In Pells v State, 20 Fla 774, the allegation, "A certain build- ing, to wit: The main exhibition build- ing of the Middle Florida Agricultural and Mechanical Fair Association," 1 was held an insufficient one of own- ership, for want of an averment that such association was incorporate d Proof of the fact of incorporation may be necessar Y Johnson v State, 73 Ala 486 For character of proof re- quired, see Norton v State, 74 Ind 337; Burke v State, 34 Ohio St 79 Miscellaneous Averments Members of Unincorporated Associatio N If the as- sociation is unincorporated, the indi- viduals comprising it being the own- ers, their names should appear in the indictment.

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3 2 East p Post Date: Sat, 26 Jul 2008 19:44:52 +0000
Pells v State, 20 Fla 774- Capable of Holding Propert Y It is not necessary to allege that the cor- poration is capable of holding prop- ert Y State v Shields, 89 Mo 259 Names of Occupier S In case a corpo- ration is the owner of a house, the names of the dwellers of the house need not be set forth in the indictment. State v Emmons, 72 Iowa 265 Incorporated in Two State S An averment that the building belongs to a corporation organized under the laws of two different states, is not defectiv e Kincaid v People, 139 111 216 A verment of Special Property in a CaRSufficient to aver such possession is the following allegation, " In the possession, care, control, and custody of the C,B and Q RCo" State v Mclntire, 59 Iowa 264 2 Davis v State, 38 Ohio St 505 But "the infirmary of Morgan county," simply, would have been an insufficient averment. 3 2 East p C 513; Jackson v State, 55 Wi S 592 See V I3 F Joint Own- ers, infr A " Dwelling-house of A " is a good Misspellin g -Misspelling of the name is a fatal error unless by statutory enactment such error is made one of mere form, and im- materia L 1 Several Owner S The common law requires, in an indictment for burglary, a precise averment of the names of each of the several owners of the building burglariously entere d 2 averment in the common-law indict- ment for burglary, under the English statutes, and under Rev StatWi S, c - l6 5 S 9 I0 - Bell z\ State, 20 Wi S 601 Sufficient Averment.

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Jackson v State, 55 Wi Post Date: Sat, 26 Jul 2008 19:33:28 +0000
Arid it is a sufficient averment that such building was A's place of residence, and that he occupied it as such at the ti Me Bell v State, 20 Wi S 601 " Belonging to " A is sufficient aver- ment. State v Fox, 80 Iowa 312 The Christian Name of the owner must be stated in the indictment. Jackson v State, 55 Wi S 592 Nor can it be stricken out to enable the allega- tion to conform with the proof, as the indictment would then be bad for un- certaint Y Jackson v State, 55 Wi S Contr A The name of the owner was Thomas H Elder, while that averred was T H EldeRIt was held not a material variance, where they were one and the same perso N State v Short, 54 Iowa 393 Proof of Christian Name need not cor- respond precisely with the allegation, if the defendant was not prejudiced by the variance (construing Mo Rev Stat1889, 4114); as, the aver- ment of " Theodore v," the owner be- ing " Theodrick v" State v Hutch- inson, in Mo 257 Christian Name Unknow N Where the Christian name is unknown, the indictment should state the fact thus: " M, whose Christian name was to the grand jury unknown;" and this is sufficient.

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Doan v State, 26 Ind Post Date: Sat, 26 Jul 2008 19:15:09 +0000
Jackson v State (Ala, 1894), 15 So Rep 344 Proof of Na Me The name should be proved as lai d The middle letter, while not necessary to be inserted, yet, if so done, must be proved as lai d Price v State, 19 Ohio 423 MisnomeRThe allegation " Henry Oberhellman " did not suffice where the owner was Ober Hellma N Con- ner v State, 14 Mo 566 See also State v Branham, 13 S Car 392, where misnomer did not avai L Omission of Surname, and describing the person as one " Richard ," seems, according to the reporter, to have been held not a fatal defect, though one judge doubted its suffi- cienc Y Cole's Case, 2 East p C 513 1 Reg v Cranage, i Sal K 385; Woodward's Case, i Leach Cri M L (2d e d) 216, note; Olive v Co M, 5 Bush (Ky) 376; State v Hutchinson, in Mo 257; People v Hagan (Su- preme Ct), 14 N Y Supp 233 2 White v State, 72 Ala 195 See infra, for exceptions under the various heading S But by statute, in Alabama (Acts 1878, p 46) the owner- ship may be averred in any one or more of several owner S Williams v State, 67 Ala 183 Names Unknow N Where the names of the persons injured in property are unknown, it is sufficient to aver "some persons, to the jurors un- know N" State v Mclntire, 59 Iowa 264 See also State v Clifton, 30 La An N 951 Especially is this the case in Iowa, under Code, 4302, 4305, sub d 6, providing that an erroneous allegation as to the name of a person is immateria L State v Mclntire, 59 Iowa 264 Joint Owner S Under Alabama Code, 4800, abrogating the common-law rule, a house belonging to several joint owners may be laid in an indict- ment as the property of any one or more of the M White -v State, 72 Ala 195 Joint Tenant S An indictment for breaking into a warehouse, improperly laid the ownership thereof in A, where it was leased to A and B, although there was a dwelling under the same roof, with internal communication with the warehouse, which was leased to A alon e Rex v Jenkins, R R C C 244 To the same effect is the decision in Saxton's Case, 2 HarR(De L) 533, holding fatally defective an averment of the ownership of a store in A, when it belonged to A and B jointl Y But in Johnson v Co M, 87 Ky 189, the contrary was adjudged, holding Partner S In the case of partners, as in that of others previously mentioned, where the ownership is in more than one, the common- law rule requiring all the owners to be averred, also holds, though there are departures therefrom, under statute S 1 e WORKHOUS e In an indictment for burglary in the work- house of a poor-law union, 2 the averment of ownership of the dwelling in the guardians of the poor of that union was held corre Ct 3 / SEVERAL COUNT S It is frequently found advisable, when the ownership of a building is in doubt, to allege in distinct counts all the probable owners, so as to avoid a variance at the tria L 4 an averment of the ownership of a barber shop in one of two joint tenants to be goo d Tenants in Commo N As in the case of joint tenants, the common law re- quires the ownership to be laid in all of the tenants in commo N White v State, 72 Ala 195; Webb v State, 52 Ala 423 However, in Alabama the ownership may be laid in any one or more of them (Code, 4800), abro- gating the above rul e White v State, 72 Ala 195 Where the house was erected by B on the lands of A, for the joint use of both, and at the time of the breaking was in their joint use, it was held cor- rect to aver the ownership of the house in both A and B, the court holding that " its ownership was severed from that of the freehold, and it was held by them as tenants in commo N" Webb v State, 52 Ala 423 1 White v State, 72 Ala 195 But under the statute it may often be laid in any one or more of the part- ner S White v State, 72 Ala 195; Williams v State, 67 Ala 183; also People v Edwards, 59Cal359 Firm Name not Sufficient. The own- ership of a building (Rev Code Ala, 3695) should not be laid, in a part- nership, by the firm name merely, but the names of the individuals com- posing the firm should be state d Davis v State, 54 Ala 88 See Beall v State, 53 Ala 460 And when both the firm and the Christian names are given, there must be proof of bot H Proof of the former, without the latter, is insufficient. Doan v State, 26 Ind 495 But see State z/McAnulty, 26 Ka N 533, where, under an information charging a breaking and entering the store of J C C and F g S, partners doing business under the firm name of C S, it was held not error for the court to charge the jury that it was sufficient to find that the building belonged to C S Firm Name Sufficient.

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2 2 East p Post Date: Sat, 26 Jul 2008 19:02:42 +0000
So held in People v Rogers, 81Cal209; People v Henry, 77Cal445 After Verdi Ct The omission to set forth the names of the partners is not a substantial error, to be taken ad- vantage of after verdi Ct Hatfield v State, 76 Ga 499 Averment of Partnershi P When the ownership is laid in the firm name, it is unnecessary to state the fact of such partnershi P People v Henry, 77 Ca L 445; People v Rogers, 81Cal209 Averment of Fact of Ownership of Buildin g Nor is it necessary to allege that the partners are the owners of the building broken into, or of its content S People v Rogers, 81Cal209 2 Stat5 6 W M Iv, C 69, 7 3 Reg v Frowe N 4 Co X C C 266 4 In Web b v State, 52 Ala 423, where the matter of variance between allegation and proof of ownership was before the court for decision, the court remarked: " All difficulty on this point would be obviated if the prosecuting officer, in drawing the indictment, when the ownership is uncertain or in doubt, would insert several counts, averring the ownership to be in the different persons in whom the evi- dence tends to show an intereSt A speedy administration of the criminal law would be promoted, and fewer of- fenders would escape the penalties they have justly incurre d" For instances in which this expedi- ent was practised, see Rex v Jarvis, i M C C 7; People S Smith, i P Ark CR Rep ( N Y)32g; Jones v Honey- g MISCELLANEOUS DEFECT S Defects that arise from the use of unusual forms, bad grammar or punctuation, or from the ill arrangement of a sentence, are not usually deemed fatal to the averment of ownershi P 1 See article INDICTMENT S 3 In Whom Alleged A IN GENERA L The proper party to be laid as the owner of the building, in an indictment for bur- glary, involves the consideration of a subject somewhat complex, and one in which no brief precise rule can be easily framed to meet every case that may aris e 2 Speaking generally, the owner- ship is properly laid in the party having the exclusive possession and control of the premises broken into, unless such possession is by an agent or servant for, and instead of, the principal or masTer 3 well, i City Hall Re C ( N Y) 183; State v Outlaw, 72 N Car 601 1 Unusual For M " A certain house then and there occupied and con- trolled by A," is a sufficient averment. Sullivan v State, 13 Tex App 464 Ill Arrangement Bad Punctuation or GrammaRThe ownership of a store- house was sufficiently alleged as "a certain storehouse, not adjoining or occupied with the dwelling-house of one B," although there was no comma after "dwelling-hous e" Butler v Co M, 81 Va 162 And the averment, " a certain mill- house not adjoining to or occupied with the dwelling-house of F," suf- ficiently averred the ownership of the mill-hous e Webster v Co M, 80 Va 598 The ownership of each and every building was properly averred in the following allegation: "A building within the curtilage of a dwelling- house; or a shop, storehouse, ware- house, or other building of W H," even with the semicolon between " dwelling-house " and "sho P" Ward 11 Stat e 50 Ala 120 Contr A But the ownership of an outhouse and a cellar was held not properly laid, or laid at all, in this averment in the indictment: "Out- house and cellar not adjoining to, nor occupied with, the dwelling-house of A;" and the defect was fata L State v Hupp, 31 W Va 355; see also State v Reece, 27 W Va 375, for a similar defective averment. 2 2 East p C 499, after speaking of arson, says: " In burglary the rule is much more complex; the ownership being neither referable altogether to the legal title, nor to the possession, but partaking sometimes of one, some- times of the other, as well as of bot H" See also 2 Russell on Crimes (gth e d) 24; Webb v State, 52 Ala 423 3 Smith's Case, 5 City Hall Re C ( N Y) 167 The ownership must be laid in the one who has an interest in the prem- ises, either as occupant or owneR" The material point to be ascer- tained will be, whether the ownership remains with the proper owner of the dwelling-house, and is exercised by him, either by his own occup:.

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