Laws

3 b UNDER STATUTE Post Date: Sun, 27 Jul 2008 2:15:32 +0000
But such an averment was bad at common la W 3 3 Coke InSt 6365; Fusse's Case, Cro Eliz 583; i Haw K p C, C 38, 32; 2 Haw K p C, C 25, 57, citing i Mo d 24and 5 Mo d 96; Starkie Cri M P I (2d e d) 78; 3 Chitty Cri M Law, 859; Lewis v State, 16 Con N 34; But- ler v People, 4 De N ( N Y) 70; Co M v Kaas, 3 BrewSt (Pa) 422; State v Dawkins, 32 S Car 23; Davis v State, 3 Cold W (Tenn) 80; State v Mather, N Chi P ( Vt)32 Nor is the court bound ex offido to take cognizance that certain hours of the evening, at certain times of the year, are part of the night, " without these words, in node ejusdem, or noc- tanTer" i Rolle AbR524; MacKalley's Case, 9 Coke Rep 66 Insufficient Allegation of Night-ti Me The following averment was adjudged to be insufficient: " Between the hours of 12 at night and 9 of the evening suc- ceedin g" State v Mather, N C H ( Vt) 3 2 Proof And such averment must be proved, 1 and as laid, whether the allegation as laid was necessary or not. 2 Burglariousl Y The word " burglariously," in the indictment is, by some authorities, not deemed a sufficient averment that the offense was committed in the night. 3 b UNDER STATUTE S As a general rule, under statutes which make no change in the common law in this particular respect, 4 or which make it an essential element of the offense, 5 the averment of night-time in the indictment is essentia L Where Several Degree S Where there are degrees or grades of stat- utory breakings, to convict for that committed in the night-time it is essential that such breaking be averred in the indictment when it is the more heinous offense ; without such averment a con- viction therefor will be impossibl e 6 In another class of cases, 1 People -v Griffin, 19Cal578; State v Whit, 4 Jones (N Car) 352; Adams v State, 31 Ohio St 463 2 See Bromley v People, 150 111 302; Guynes v State, 25 Tex App 3 In Marks's Case, 4 Leigh ( Va) 660, the allegation that the burglary was committed in the night-time was omitted, and it was held a fatal defect, though "it was indeed charged that the offense was burglariously com- mitte d" The same decision was ar- rived at in Lewis v State, 16 Con N 32, there being no allegation of either night or houRHinman, J, in this case says that " ' burglariously ' nec- essarily implies that it was done in the night.

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People v Jefferson, 52Cal453 See Post Date: Sun, 27 Jul 2008 1:57:21 +0000
* * * That it is so understood in modern professional language is doubtless true; yet it is said in Jacob's Law Diet, tit Bur- glary, that originally the term signified only the robbery of a dwelling-house, without any reference to the time when it was committe d" So, etymo- logically at least, his is the correct conclusio N Citing 3 Chitty Cri M Law, 859 Contr A The following authorities deem the word " burglariously " a suf- ficient implication of night-time, with- out the express allegation: 2 Hale P C 159; Bacon's AbR(Indictment) g 4, in note S 4 Co M v Kaas, 3 BrewSt (Pa) 422; Davis v State, 3 Cold W (Tenn) 80 5 State v Mack, 20 Oregon 235 See also Davis v State, 3 Cold W (Tenn) 80 Where Separate and Distinct Offens e In Hall v Peopl e 43 Mich 417, a stat- utory breaking in the daytime (Pu b Acts 1875, p 131) and one in the night- time are regarded as separate and dis- tinct offenses; and an information fail- ing to aver either night-time or day- time as the time the offense was com- mitted alleges no offense under Mich- igan law S See also Williams v State, 46 Ga 215: though Lassiter v State, 67 Ga 739, decides that a conviction for either night or day breaking is allowable under an indictment alleg- ing neitheRState v Anselm, 43 La An N 195 Proof Where night-time is of the essence of the offense, it must be proved as well as allege d Davis v Stat e 3 Cold W (Tenn) 80 6 Co M v Reynolds, 122 Mas S 454, citing Hopkins v Co M, 3 Met (Mas S) 460; Butler v People, 4 De N ( N Y) 70; Co M v Kaas, 3 BrewSt (Pa) 426 Omission not Fata L But the omission of such averment of night is not fatal to the indictment, which will support a conviction for the lower breaking in the daytime, if otherwise the same general crime is charge d Bromley v People, 150 111 297; State v Allen, La (1888), 5 So Rep 31; Co M v Reynolds, 122 Mas S 454; But- ler v People, 4 De N ( N Y) 70; Sum- mers v State, 9 Tex App 398; State v Robertson, 32 Tex 163 See also Waters v Slate, 53 Ga 568 But see Lassiter v State, 67 Ga 739 Even where the two breakings, by night and by day, are considered distinct of- fenses, State v Anselm 43 La An N 195 Contr A Co M v Kaas, 3 BrewSt (Pa) 426, in which the court held that since the statute referring to a breaking in the daytime does not de- however, the question of the time of day is held to be a matter of evidence, in which cases no allegation of night is necessary to warrant a conviction for the night breakin g 1 3 Dayti Me In general, if only the lower punishment is sought to be inflicted, it is not necessary to allege daytime in the indict- ment 2 clare that the offense therein pun- ished shall be " burglary," it is a sep- arate and distinct offense therefrom; and the omission to allege "night- time," in an indictment for burglary, was held not to bring it under the statut e The law was similar to this in Cal- ifornia prior to the amendments (for the effect of which see infra). Peo- ple v Jefferson, 52Cal454 For fur- ther cases see3 Daytime* infr A Where Night Alleged, cannot Convict for Da Y If, in an indictment charg- ing night-time, all the facts stated therein do not necessarily include any degree of the offense inferior to the night-breaking, there can be no con- viction for such lower grade there- undeRState v Behee, 17 Ka N 402 But where burglary was charged, in the indictment, to have been committed in the night-time, and was so estab- lished by the evidence, and the court correctly charged the law, a further instruction that the jury might find the defendant guilty of entry effected in the daytime was, though erroneous, not such error as to cause a reversal of the judgment of guilty of the night offens e Mace v State, 9 Tex App 114 1 California Since 1876 (Penal Code, 460, 461) burglary committed in the night-time is burglary in the first degree, and in the daytime bur- glary in the second degre e And the indictment should charge generally, and leave the degree to be determined by the evidenc e The indictment to cover both degrees must not specify that the entry was either by day or by night. People v Jefferson, 52Cal453 See also People v Barnhart, 59 Ca L 381, where, though the proof showed commission at night-time and the conviction was for a day breaking, it was held no reversible erroR Georgia In this state since the Act of 1878, which abolished all distinc- tions between burglary in the day- time and in the night-time, it is not necessary to specify either in the in- dictment (see Code, 4628, 4386).

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1 In others, to convict Post Date: Sun, 27 Jul 2008 1:46:47 +0000
Las- siter v State, 67 Ga 739 After Verdi Ct Before the last case was decided it was held that an indict- ment alleging neither night-time nor daytime, while demurrable, was not so after a verdict finding a breaking in the dayti Me Jones v State, 63 Ga 141 Texa S Neither daytime nor night- time need be allege d Rodriguez v State (Tex Cri M App, 1894), 26 S W Rep 406 And if the rest of the in- dictment is sufficient and properly sup- ported by evidence, such an indict- ment will support a conviction for the offense committed either in night or da Y Carr v State, 19 Tex App 635, approved in Martin v State, 21 Tex App I, and Buchanan v State, 24 Tex App 195 See also Finlan v State (Tex App, 1890), 13 S W Rep 866 But it is better practice to allege night- ti Me Conoly v State, 2 Tex App 417 Sufficient Indictment. For sufficient indictment for burglary in the night- time, see Lawson v State, 13 Tex App 264 Washingto N The indictment suffi- ciently conforms to statutory require- ments with the omission of night-time or daytime, if adequate in other re- spect S State v Miller, 3 Wash 131 2 Bromley v People, 150 111 297; State v Anselm, 43 La An N 195; State v Allen ( La, 1888), 5 So Rep 531; Butler v People, 4 De N ( N Y) 70 "To charge," says the court, in Nicholls v Stat e 68 Wi S 420, " that the offense was committed in the day- time would only have been another way of charging negatively that it was not committed in the night-ti Me" Such negative allegation is unneces- sar Y See also Co M v Reynolds, 122 Mas S 454 Nor is the allegation necessary when, by the other averments, it can be seen that the day breaking was necessarily implied from the statutory definitio N State v Robertson, 32 Tex 163 Conviction for Higher Grad e And in some cases a conviction for the more heinous offense (night breaking) is permitted under such an indictment. 1 In others, to convict of the statutory offense of breaking, etc, in the daytime the express averment of such breaking is necessary in the indictment.

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State, 63 Ga 141 Post Date: Sun, 27 Jul 2008 1:28:58 +0000
2 4 HouRThe averment of the hour of the day in the indict- ment is, by almost all the authorities, deemed not essentia L 3 A Conviction for the Lower Grade is a bar to any subsequent prosecution for the same offense with the aggravating circumstance S Co M v Reynolds, 122 Mas S 454; Co M v Burke, 14 Gray (Mas S) loo, and cases cite d 1 Carr v State, 19 Tex App 635, ap- proved in Martin v State, 21 Tex App i, and Buchanan v State, 24 Tex App 195; Finlan v State (Tex App, 1890), 13 S W Rep 866; Sampson v State (Tex Cri M App, 1892), 20 S W Rep 708; Rodriguez -v State (Tex Cri M App, 1894), 26 S W Rep 406; Conoly v State, 2 Tex App 417, which says it is better practice to charge it. Where degrees of the same offense see People -v Jefferson, 52Cal453; Bravo v State, 20 Tex App 188; People v Barnhart, 59Cal381 Where distinct offenses see State v Miller, 3 Wash -131 Where all distinction abolished see Lassiter v State, 67 Ga 739, virtually overruling Jones i. State, 63 Ga 141, which held that the omission was de- murrable, though not after verdi Ct Daytime Breaking in Texas is suffi- ciently charged when an entry by force is averred, with no allegation that it was at night, or made in the daytime by one who lay concealed un- til night.

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1 in this Country, however Post Date: Sun, 27 Jul 2008 1:12:33 +0000
Bravo v State, 20 Tex App 188, folio-wing Summers v State, 9 Tex App 396 2 State v Behee, 17 Ka N 402; Hall v People, 43 Mich 417; Co M v Kaas, 3 BrewSt (Pa) 426; Davis v State, 3 Cold W (Tenn)8 I And see People v Taggart, 43Cal81; Williams v State, 46 Ga 212 (but see now Lassiter v State, 67 Ga 739); Haggett v Co M, 3 Met (Mas S) 457; Hopkins v Co M, 3 Met (Mas S) 460; Hutchinson v Co M ,4 Met (Mas S) 359; Hollister v Co M, 60 Pa St 105 Where Night is Alleged there can be no conviction for a daytime breaking, though it is not reversible error for the court to so instruct the jury before a conviction for breaking in the night- ti Me Mace v State, 9 Tex App 114 3 At Common La W Rex v Clarke, i BulSt 203; i Hale p C 549: Reg v Thompson, 2 Cox C C 445 ( Stati Viet, C 86, 4, defines night to com- mence at 9 p M and to conclude at 6 A M of the following day); Bethune v State, 48 Ga 509; Olive v Co M, 5 Bush (Ky) 378; State v Woods, 31 La An N 267; Thomas v State, 5 How (Mis S) 31; State v Jim, 3 Murp H ( N Car) 3; Hackett v Co M, 15 Pa St 95 In Missouri, since Rev Stat1889, 3520, the hour need not be charge d State v Hutchinson, in Mo 257 Statute Defining Night-time, when such exists, is sufficient to aver night- time generall Y Reg v Thompson, 2 Cox C C 445; Co M v Williams, 2 Cus H (Mas S) 589; Co M v Rey- nolds, 122 Mas S 454 Proof need not correspond to the allegatio N Rex v Clarke, I BulSt 203; People v Burgess, 35Cal115; Co M v Reynolds, 122 Mas S 457; State v Bancroft, 10 N H 105 And evidence of any other hour of the night is sufficient. State v Tazwell, 30 La An N 884; Bethune v State, 48 Ga 509 Hour Essentia L The time should be averred, as, "On such a day, about the tenth hour," etc 2 Hale p C 179 (yet see on page 549); State v g S, i Tyler ( Vt) 300 In Waddington s Case, 2 East p C 513, where the omission was held fatal to an indictment for burglary, though good for simple larceny, it was held necessary to specify the hour, in order that the fact might appear upon the face of the indictment that the offense was done between twilight of the evening and that of the mornin g See also Bacon's AbR(Indictment), g 4, in note S " Not safe wholly to omit it," though the omission is not fata L 2 Haw K p C Usual to aver it, though the evi- dence need not strictly correspon d People v Burgess, 35Cal117, 2 East P C 513- Iv AVERMENT OF PLACE 1 Minor Locality A AVERMENT IN GENERA L At the common Law and in England the averment of the minor locality, in the description of the place where the burglary was committed, seemed essential to the indictment. 1 in this Country, however, such averment in the indictment is con- sidered unnecessar Y 3 Night of the Preceding Da Y It is usual to state the hour to have been in the night of the preceding day, though the offense was committed after mid- night.

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" 2 Haw K P Post Date: Sun, 27 Jul 2008 0:54:26 +0000
Archbold's Cri M P I and Ev ; 3 Chitty Cri M Law 1117 See Meth- ard v State, 19 Ohio St 367 Insufficient Allegatio N It is insuffi- cient to aver that the offense was com- mitted between the hours of twelve at night and nine the next morn- in g State -v Mather, N Chi P ( Vt) 32 "About the Hou R" The usual aver- ment is, " About the hour of three in the afternoon of said day," etc (with proper substitutions). Bishop on Directions and Forms, 255 This is not deemed insufficient by reason of the word " about." 2 Haw K P C, C 23, 87; State -v Seymour, 36 Me 225 In Methard v State, 19 Ohio St 367, it was held " sufficiently definite and certai N" See also 3 Chitty Cri M Law 1117; Matthew Cri M Di g 434; 4 Wentworth P I 52; Rex v Marshall, i M C C 158; People v Taggart, 43Cal81; Hollister v Co M 60 Pa St 103 Yet see i BulSt 77, 80, 81, 82, 83; i Bishop Cri M Pro (3d e d), 90 1 And such is, perhaps, still essen- tia L 2 Russell on Crimes (gth A M e d) 46, and Carny's Case, 3 City Hall Re C ( N Y) 44 Yet, as Mr Bishop observes (Cri M Pro, 135), the Eng- lish cases seem not unequivocally so to decide, most of them turning on the question of variance, since, if the minor locality is alleged and the dwelling is described as " there situ- ate," the former must be proved as laid, or there will be a varianc e In Covy v State, 4 Port (Ala) 191, the court states that " formerly it was necessary in England to name the town, hamlet, parish, or hundred, or the manor, castle, forest, or other known place, where the offense was committed, besides the count Y" But the court further reasons that now, since the jury are returned from the body of the county, it is sufficient to state only the county in the venir e This is also the law in Alabama 2 See Covy v State, 4 Port (Ala) 191; State v Smith, 5 HarR(De L) 490; Wingard v State, 13 Ga 396; State v Warner, 4 Ind 604; State v Goode, 24 Mo 361; Barnes v State, 5 Yerg (Tenn) 182; Corley v State, 3 Tex App 412 See, however, Carny's Case, 3 City Hall Re C ( N Y) 44 Within Jurisdiction of the Court.

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1 C CONSTRUCTION Post Date: Sun, 27 Jul 2008 0:36:17 +0000
If the place where the burglary was committed is shown in the indictment to be within the jurisdiction of the court, it is " not necessary to specify the township, hamlet, or village with- in which it was located, any more than the road or watercourse by which it stoo d" Spencer v State, 13 Ohio 407 Nor in Indiana by Rev Stat, 367 ft se Q, Dillon v Stat e 9 Ind 411; or North Carolina, State v Lamon, 3 Hawks (N Car) 175; State v Glasgow, Conf Rep ( N Car) 38 Former Acquittal or Convictio N The place must be described with sufficient accuracy to enable the accused, in such indictment, to plead judgment thereon, in bar of any future actio N See Covy v State, 4 Port (Ala) 186 Town or City is, in many of our states, usually averred, and even the ward of the city; while in others such is not the custo M Carny's Case, 3 City Hall Re C ( N Y) 44; Covy v State, 4 Port (Ala) 186 Count Y The averment of the county seems to be necessary, as usually showing the jurisdiction of the court. Evarts v State, 48 Ind 422; State v Chamberlain, 6 Nev 260; Searcy v State, 4 Tex 450 See also Spencer v State, 13 Ohio 407 Unnecessary Particulars need not be state d The indictment alleged that the defendant, "late of N, in the county of W, * * * at N aforesaid, the dwelling-house of T H, there situate," did break and enter, etc The court held that, though N was a chapelry and perpetual curacy, the indictment was not objectionable for b PROOf If the place as averred is not only stated as a venue but forms a part of the description of the offense, proof must correspond to the allegation, whether such was necessary in the first instance or not. 1 C CONSTRUCTION OF PHRASE S Where the indictment al- leges the dwelling-house to be "at the parish aforesaid," the par- ish last mentioned will be held to be intende d 2 d CAPTIO N Where, by appropriate words in the body of the indictment, the place is referred to as that previously laid in the indictment, if the caption contains a correct statement of venue, this is a sufficient averment of plac e 3 failing to state the fa Ct It was suffi- cient that such a district was proved to exiSt Reg v Brookes, C M 543, 41 E C L 296 ; 2 Russell on Crimes (gth A M e d) 46 Need not be Legal Na Me " Parish of Woolwich " was sufficient, if it was shown that it was known by that name, though the correct name was "St Mary, Woolwic H" Reg v St John, 9 Ci p 40, 38 E C L 28; 2 Russell on Crimes (gth A M e d) 46 Place of Breakin g If the breaking is laid in a certain county it is held a sufficient allegation that the house was in that count Y State v John- son, 4 Wash 593 ; Ross v State, 16 Tex App 558 1 State v Lamon, 3 Hawks ( N Car) 175; State v Glasgow, Conf Rep (N Car) 38, 51 (though usually, if not so descriptively averred, it need not be proved); r Bishop Cri M Pro (3d e d), 370; Sullivant v State, 8 Ark 406; People v Robinson, 17Cal363; State v Shaw, 35 Iowa 575; Berry v State, 92 Ga 48 In Carny's Case, 3 City Hall Re C ( N Y) 44, the house burglariously entered was in the sixth ward, though alleged to be in the tent H Held, a fatal varianc e "There Situate," if averred in the in- dictment after the dwelling-house, ren- ders necessary proof of the venue as lai d Archbold P I Ev in Cri M Ca S (i?th e d) 489; Matthew CRDi g 434; 3 Chitty Cri M Law, 1118-1121; State v Kelley ( N H, 1891), 29 At L Rep 843; but this averment is not necessary to be laid, Rex v Nap- per, i M C C 44; Co M v Lamb, I Gray (Mas S) 493; holding the place alleged in the venue, taken in connec- tion with ihe allegation " then and there," to be sufficient, Ross v State, 16 Tex App 558 Contra, State v Gaffrey, 4 Chan d (Wi S) 165 Building in Several Parishe S An in- dictment for burglary in the room of a guest in a tavern alleged the tavern to be in the parish of St Edmun d The fact that the house was not wholly situated in this parish, and that the boundary line ran across the room burglariously entered the greater part of which, together with the door thereof, was in the alleged parish, and the remainder, including the chest containing the goods stolen, was in the parish of St Michaels the court did not consider a sufficient variance to render the indictment bad, but recommended a limitation of the verdict to burglary, and not to in- clude the larceny charge d Reg v Howell, i Cox C C 190; 2 Russell on Crimes (gth A M e d) 47 Parish in Several Counties Local De- scriptio N Where a parish was al- leged to be in the county of W, and the facts showed it to be in two coun- ties, a description of a warehouse bur- glariously entered as " there situate," though said warehouse was in the portion of the parish lying in the al- leged county of W, was insufficient.

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, the grand jury for Post Date: Sun, 27 Jul 2008 0:18:56 +0000
This is a local description, and the parish should have been accurately lai d Reg v Brookes, C M 543, 41 E C L 296, referring to Rex v Per- kins, 4 C p 363 2 Rex v Richards, i M R177; 2 Russell on Crimes (gth A M e d) 46 "There Situat e'' The indictment charged that the prisoners, " late of the parish of Pontypool, at the parish aforesaid, in the county aforesaid, the dwelling-house of the guardians of the poor of the Pontypool Union, there sit- uate, feloniously did break," etc And " there situate" was held to refer to "the parish aforesaid," and not to the Pontypool Unio N Reg v Frow- en, 4 Cox C C 266 3 In State v Reid, 20 Iowa 413, the 2 Building# IN GENERAL Dwelling-hous e The building en- tered must be alleged in the indictment ; and where such is a dwelling, itjs expressed by the word " dwelling-house," or " man- sion-hous e" * Other than Dwelling-hous e But where the building broken is other than a private dwelling, then it seems proper to lay the building as the facts requir e* caption read: " The grand jury of the county of Dubuque, in the name and by the authority of the state of Iowa * * * accuse A, B, and C * * * of the crime of burglary;" and the alle- gation of place in the body of the in- dictment was the dwelling-house of X, " there situat e" Held, a good averment. Two Count S And where there were two counts, the second of which laid the venue "in said county," it was a good averment, the caption being " Virginia, * * * Roanoke County, to wit," and this even though the first count was defectiv e Wright v Co M, 82 Va 185 Insufficient Averment S Where the indictment, however, commenced " Ac- comack, set., the grand jury for the district of Accomack and Northamp- ton," etc, and laid the offense to have been committed " in the county of Northampton, at the parish of Hung- ars," it was held not to lay suffi- ciently the burglary to have been committed within the jurisdiction of the court, "or within the district com- posed of the counties of Accomack and Northampto N" Co M -v Richards, i Va Ca S I Where the caption laid the venue in one county and the body of the indict- ment in another, it was error to lay the offense to have been committed in "the county aforesai d" Bell v Co M, 8 Gratt ( Va) 604 See also State v Jackson, 39 Me 295; State v Hard- wick, 2 Mo 228: Jane v State, 3 Mo 61 1 3 Coke InSt 64-65 ; i Haw K p C, C 38, 10; St Ark Cri M P I (2d e d) 78; 2 Russell on Crimes (gth A M e d)i S " Mansion - house " is sufficient.

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* Apartments of Palac e Post Date: Sun, 27 Jul 2008 0:07:42 +0000
Thompson v People, 3 P Ark CR Rep ( N Y) 214; Co M v Pennock, 3 S R(Pa) 199 "House" is not sufficient. 2 East p C 512; i Hale p C 550; 3 Chitty Cri M Law (4th A M e d) 1109 In State v Morgan, i WinSt ( N Car) 246, "upon the premises and into the house " was held an insuffi- cient allegatio N "Close" is also defectiv e 3 Coke InSt 65 " The " or "a " Dwelling-hous e The use of the words " the dwelling- house of A" instead of " a dwelling- house of A," it was held, did not viti- ate the indictment, where the house belonged to A, although it was occu- pied by one of his employee S State v Outlaw, 72 N Car 598 2 4 Blackstone Co M 224, 225 See I Haw K p C 512 In 2 East p C 512, it is held that, in the breaking of a church or gates of a town, " it seems agreed to be more proper to lay the indictment ac- cording to the truth of the fa Ct" But see Davis v State, 38 Ohio St 505 In Several Count S Where there is any doubt as to the nature of the building, a count may be inserted for breaking and entering a building within the curtilage, i Hale p C 556, not e Churc H Where a church is broken into, it should be described in the in- dictment as " church," or " the parish church," etc 2 East p C 512; i Hale P C 556 But see I Haw K, C 3, 517, where the allegation "mansion-house" is held permissibl e However, at chap- ter 38, 10, it is laid down that " it cannot be necessary or proper to have any such word [mansion] in an indict- ment for a burglary in a church, which * * * seems to be taken as a distinct burglary from that in a hous e" i Hale p C 556, gives as the rea- son for holding " ecclesiam " as a good averment, the fact that " ecclesia is domus mansionalis," having in mind the fanciful interpretation of Lord Coke, who held the correct averment of " church " to be " mansion-house," it being " the mansion-house of Go d" But see 3 Chitty Cri M Law (4th A M e d), 1109, and authorities already quoted, who declare the rule to be as already state d b UNDER STATUTES (i) In Genera L The indictment should follow the statutory requirements, and should so allege the place as to bring it within the terms of the statut e 1 (2) Statutory Wor d In alleging the building, if the statute makes use of a particular word, such statutory word should be used in the indictment.* Apartments of Palac e A burglary therein must be alleged to be in the " mansion-house " of the kin g Hun- gate's Case, i Leach Cri M L 324, not e Parcel of the Dwelling-hous e What- ever is laid is considered part or par- cel of the dwelling-house, as out- buildings and the like, and should be laid in the indictment as the " dwell- ing-house, "3 Coke InSt 64 (containing a list of parts included in this cate- gory), i Hale p C 558; 2 East p C 512; People v Stickman, 34Cal245; or " part of the dwelling-house," after naming the outbuilding or part broken into, Dobbs's Case, 2 East p C 513 (being the stable broken into).

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If the plain import Post Date: Sat, 26 Jul 2008 23:55:34 +0000
See also 2 Hale 493; 2 Russell on Crimes (5the d)43- Sho P Where the indictment laid the place broken into as the " shop," the court held it good, though it added, " But a shop wherein any per- son doth converse, being parcel of a mansion-house or not parcel, is taken for a mansion-hous e" Cole's Case, i Hale p C 558 Street and NumbeRIt is not neces- sary to give the street and number of the house alleged to have been broken int O Olive v Co M, 5 Bush (Ky) 1 The indictment for burglary "should contain as accurate refer- ences to the place of the offense as the purposes of the statute requir e" People v Saunders, 29 Mich 270 See also Thomas v State, 97 Ala3 Exact Language of the statute, if used in the description of the build- ing, is sufficient, Murray v State, 48 Ala 681; and this even though the averment is disjunctive averment. In Ward v State, 50 Ala 120, the place was thus alleged, " A building within the curtilage of a dwelling-house, or a shop, storehouse, warehouse, or other building;" and it was held not objec- tionable, being the language of the statut e Mason v State, 42 Ala 543; People v Henry, 77Cal445 But see Pickett v State, 60 Ala 77; Danner v State, 54 Ala 130 Substantial Compliance with statu- tory requirement is, however, all that is essentia L See State v Miller, 3 Wash 134 ; also Thompson v Peo- ple, 3 P Ark CR Rep ( N Y) 208 where the allegation 'house of A" was held a sufficient compliance with the statutory word dwelling-hous e 2 Rev Stat668, 12 Plain Import. If the plain import of the allegation, as made in the indict- ment, is to bring it within the statu- tory terms, such will be inferre d State v Johns, 15 Oregon 27 Offense Unknown to the Common La W When a statute creates a new offense unknown to the common law, as breaking into a railroad car, the in- dictment based on such must clearly allege "every fact which enters into and is an ingredient of the offens e" Graves v State, 63 Ala 134 2 Stone v State, 63 Ala 119 If other words than those employed by the statute are made use of, such words, to be good, must be " precisely equivalent" to the statutory ones, or " plainly and necessarily include them," Hagar v State, 35 Ohio St 268; or the words must be synonymou S See State v Canney, 19 N H 138 Bar N The description of a "to- bacco-house," which was also used to store farm products, as a " barn," was held a good one, being within the in- tent and meaning of the statut e Rate- kin v State, 26 Ohio St 420 Hous e Under Code Cri M Pro (art.

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