State v. McClung

• Decision Date: 10 September 1891
• Citation: 13 S.E. 654,35 W.Va. 280
• Parties: State v. McClung.
• Court: West Virginia Supreme Court

13 S.E. 654

35 W.Va. 280

State v. McClung.

Supreme Court of Appeals of West Virginia.

September 10, 1891

Submitted September 8, 1891.

Syllabus by the Court.

1. A count of an indictment alleging a breaking and entering into a dwelling with intent to steal goods therein, and actual larceny therein, is not bad as a count for burglary, because that part charging larceny is not drawn with sufficient precision to support a conviction of larceny. As the breaking and entering are charged to have been done with intent to commit larceny, a charge of actual larceny is not necessary and may be rejected as surplusage.

2. To support a conviction of larceny, the charge of it in such count must be well laid, as in an indictment for larceny.

3. Upon a count properly alleging both burglary and larceny, there may be a conviction of either, but not of both.

4. Upon a general verdict of guilty on such a count, the sentence would be for burglary, not for both larceny and burglary, or for larceny.

5. Each count in an indictment must have the conclusion "Against the peace and dignity of the state," else it is fatally defective. Advantage of the defect may be taken for the first time in this court.

Error to circuit court, Clay county; V. S. Armstrong, Judge.

Indictment of Frank McClung, alias Frank McAllister alias Frank McClintock, for burglary. Verdict of guilty. Defendant brings error. Reversed.

Alfred Caldwell, Atty. Gen., for the State.

Brannon, J.

The following indictment was found in the circuit court of Clay county: "The grand jurors of the state of West Virginia in and for the body of the county of Clay, and now attending the said court, upon their oaths present that Frank McClung alias Frank McAllister, alias Frank McClintock, on the _____ day of _____, 1890, about the hour of _____ o'clock, in the night-time of that day, feloniously and burglariously did break and enter into the dwelling-house of one Lewis Kyer, situated in said county, with intent the goods and chattels of him, the said Lewis Kyer, in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take, and carry away, and one pair of pants or pantaloons, and other goods and chattels, of the value of $24, of the goods and chattels of the said Lewis Kyer, in the said dwelling-house, in the county aforesaid, then and there being found, then and there feloniously and burglariously did steal, take, and carry away. And the grand jurors aforesaid, upon their oaths aforesaid, present that the said Frank McClung, alias Frank McAllister, alias Frank McClintock, on the _____ day of _____, 1890, in the county aforesaid, did feloniously and burglariously take, steal, and carry away goods and chattels belonging to one Lewis Kyer of the value of $24, and one pair of pants of the value of $5, and he, the said McClung, alias McAllister, alias McClintock, did then and there break and enter the dwelling-house of the said Lewis Kyer in the night-time, with intent to commit larceny and burglary, and did then and there feloniously and burglariously take, steal, and carry away household goods of the value of $24, against the peace and dignity of the state." The defendant, having been convicted of burglary, and sentenced to the penitentiary for five years, has come to this court upon a writ of error. When application for this writ of error was made, I observed but one point of reversible error, nor do I now see any other; and perhaps that was inadvertently overlooked in the circuit court; and that is the want of the constitutional conclusion to the first count.

The first error assigned is the overruling of a demurrer to the indictment. That demurrer was not to each count, or to the indictment and each count, but was general to the indictment and therefore, if either of its two counts be good, there is no error in overruling the demurrer; for where the indictment contains more than one count, and the demurrer is general, and one count is found good, the demurrer must be overruled. State v. Cartright, 20 W.Va. 32; Hendricks' Case, 75 Va. 934; Whart. Crim. Pl. § 401; 1 Bish. Crim. Proc. § 449. For this purpose and generally, each count is regarded as a separate indictment, and as presenting a separate offense. State v. Smith, 24 W.Va. 814. Then let us see whether either of the counts of this indictment is good. Except for want of a conclusion, the first count is good for burglary. If counsel specifies any defect in this count, it is that the charge of larceny is bad. I think that feature is bad,-that is, to support a verdict of guilty of larceny,-because it specifies only one article of the things stolen, the pantaloons, and alleges that "other goods and chattels" were stolen, without specifying them, and gives a value of $24 to all of them together. But the fact that the charge of larceny is bad, by no means vitiates the count regarded as a count for burglary, because, if we reject the larceny feature, there remains the charge of burglary. It is common and better practice to allege in one count both the burglary and the larceny, (1 Hale, P. C. 560; Speer's Case, 17 Grat. 572;) and under such count there may be a conviction of the one or the other of those offenses, (Reece's Case, 27 W.Va. 375; Clarke's Case, 25 Grat. 908; 1 Hale, P. C. 559; Rosc. Crim. Ev. 347; Whart. Crim. Pl. § 244.) In Vaughan's Case, 17 Grat. 576, where there was a count charging both burglary and larceny, Judge Joynes said: "The allegation of actual larceny is only in aid of the intent. If that allegation were struck out altogether, enough would remain to describe the offense of which the prisoner has been convicted. Such being the object for which the charge of an actual larceny is introduced, it need not be laid with the same formality as in an indictment for the larceny itself. Larned v. Com., 12 Metc. (Mass.) 240; Com. v. Doherty, 10 Cush. 52; and see Regina v. Clarke, 1 Car. & K. 421, (47 E. C. L.) It is always better, however, to lay the charge of larceny in proper form to avoid objection in case the prisoner should, as he may, on such a count as this, be found not guilty of breaking and entering, but guilty of larceny." In Josslyn v. Com., 6 Metc. (Mass.) 236, the count charged the breaking and entering of the shop of Charles W. Fogg, "with intent the goods and chattels of said Fogg, then and there in said shop being found, feloniously to steal, take, and carry away." Chief Justice Shaw said: "Nor is it necessary to describe the goods intended to be stolen. A general intent to steal goods would complete the offense, and therefore the averment of such intent, without more, is sufficient to charge it, and the rule would be the same if there were no goods or no goods of Fogg in the shop. The crime was complete by the breaking and entering with intent to steal goods." In Larned v. Com., 12 Metc. (Mass.) 240, to the objection that the charge of larceny was defective in an indictment for burglary, the court said that the charge of actual larceny was not necessary to constitute the burglary; that the mere intent to commit larceny was sufficient; and the allegation was only to be taken in aid of the charge of intent, and, if a conviction was had, the punishment would be for burglary, not a distinct sentence for larceny. The court held the specific charge of larceny surplusage, and that, if wholly defective, there would still remain sufficient to sustain a conviction. It might be supposed that, as on a count charging both burglary and larceny there may be a conviction of either, there could also, if both offenses were proven, be a conviction of both, followed by the separate penalty for each; but this is not so, for, if there be a general verdict of guilty on such a count, it is deemed a conviction of burglary only, and the sentence is for burglary, not for both, or for larceny. Speer's Case, 17 Grat. 570; 1 Hale, P. C. 559. In Com. v. Hope, 22 Pick. 1, it was held that, on a...