Ackerman v. State

• Decision Date: 10 September 1898
• Parties: ACKERMAN v. STATE
• Court: Wyoming Supreme Court

54 P. 228

7 Wyo. 504

ACKERMAN v. STATE

Supreme Court of Wyoming

September 10, 1898

Information filed in the district court, October 27, 1897.

ERROR to the District Court for Johnson County. HON. JOSEPH L STOTTS, Judge.

William H. Ackerman was convicted of the crime of grand larceny, and he prosecuted error.

A complaint was filed before a justice of the peace charging the plaintiff in error with burglary in breaking and entering a "sheep wagon used as a dwelling house," and stealing therefrom certain personal property. Upon an examination by the justice, the defendant was held to answer at the next term of the district court. Subsequently at such term of court the prosecuting attorney filed an information against the defendant charging him with burglary in breaking and entering "the dwelling house of A. L. and A. M Brock, then and there used and occupied as a sheep wagon," with intent to commit larceny, and also with the larceny therein of certain goods of Ole Broberg of the value of $ 23.25, and also certain goods of A. L. and A. M. Brock of the value of $ 5.65.

To this information the defendant interposed what is entitled a "plea of former jeopardy," setting out that the defendant had been arraigned before the justice on two separate charges of petit larceny charged in one complaint to which he pleaded not guilty. That the justice had jurisdiction to hear, try, and determine said two charges, but that instead of entering judgment for or against the defendant, said justice held the defendant to answer to a charge of burglary, upon which the defendant had had no preliminary examination; and praying that "said information be set aside and dismissed, and that he be not required to plead thereto." The record disclosed that the cause "coming on to be heard upon the defendant's plea of former jeopardy and motion to dismiss the information," the court overruled "said motion." The defendant then entered a plea of not guilty, and upon a trial before a jury was found guilty of larceny, and the value of the property to be $ 29.15. Motions for new trial and in arrest of judgment were denied by the court, and the defendant sentenced to the penitentiary.

Judgment affirmed.

Charles H. Burritt and Alvin Bennett, for plaintiff in error.

The complaint before the justice was not sufficient to charge the crime of burglary, and therefore the prosecuting attorney had no right to file an information charging that crime. He had had no preliminary examination on that charge. (L., 1890, 1891, Ch. 29, Sec. 7.) An information can not go beyond the charge made in the complaint, and for which the defendant has been held to answer by the committing magistrate; and where a complaint fails to charge an offense, no valid information can be based upon it. (People v. Howland, 44 P. 342; Landrum v. State (Tex.), 40 S.W. 737; State v. Ferris, (Ida.), 51 P. 772.) A "sheep wagon" is not a dwelling house nor a building in any sense within the meaning of the statutes relating to burglary. (L. 1890, Ch. 73, Sec. 37; State v. Schuchman (Mo.), 33 S.W. 35; State v. South, 38 id., 716; State v. Bryant, 2 id., 836; Bish. Stat. Cr., Sec. 245.) Two petit larcenies were charged, and not one grand larceny. Property of one person of value of $ 23.25 and of another of the value of $ 5.65 was alleged to have been stolen. (U. S. v. Breman, 24 F. C., 1065.) The evidence is insufficient to support the charge of grand larceny. The verdict was insufficient for a failure to refer to the information. (Bish. New Cr. Pro., Sec. 1005; People v. Cumming, 49 P. 576 (Cal.); State v. Rome, 44 S.W. 266.)

J. A. Van Orsdel, Attorney-General, for the State.

While the complaint before the magistrate charged both burglary and grand larceny, and was ample upon which to base an information, whether or not it was sufficient is immaterial, by reason of the provisions of Sec. 7, Ch. 123, L. 1895. The prosecutor has authority to file the information without a preliminary examination, as the charge was made within thirty days of the first day of the regular term of court.

A sheep wagon can be held to come with the designation, "or other building whatsoever," or within the designation, "any dwelling house." The point to be considered in determining whether a felonious breaking constitutes burglary is not what kind of a habitation or close was entered, not its structure or appearance, not its location or permanency, but its use. If its use was as a "dwelling house," then the felonious breaking with intent to take constituted burglary. The phrase, "any dwelling house," certainly must be held to embrace a great variety of habitations, and is a reasonable and easily understood use of the English language describing not only the substantial mansion of the wealthy, but also the frail and unpretentious but of the poor. The dwelling, whether of the rich or the poor, may or may not be permanently located, according to the occupation or necessities of the owner. It embraces the tepee of the Indian and the habitation of the wandering gipsy; it may be on wheels, as, for illustration, the private car of a railroad official or the car of a foreman of a wrecking gang; it may be afloat, as, for example, the steam yacht of a wealthy man, or the tow boat of one engaged in transporting freight on a canal; it may be a tent or a sod house, a boat or a car, but if it is used as a place of habitation, then it would be a dwelling house within the reasonable meaning of the statute, and any attempt to construe the statute as designating or prescribing any particular kind of dwelling house, is a plain violation of its intent.

It is unnecessary to consider that question. The jury did not convict of burglary.

It is a well-established principle of criminal law in this country that property stolen from different owners, where the theft constitutes one transaction, may be included in one count of the information. (1 Bish. New Cr. L., Secs. 1061-63, and cases cited.) And the aggregate value of the property stolen, irrespective of ownership, if it constitutes one transaction, is to be considered in determining the degree of the crime. (2 Bish. New Cr. L., Sec. 888, and cases cited.)

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

CORN, JUSTICE.

(After stating the facts as above.) A number of errors are assigned, but the points relied on are in substance that breaking and entering a "sheep wagon," however occupied or used, does not constitute burglary under our statute; that the complaint before the justice was not a sufficient basis for the information upon which the defendant (plaintiff in error) was tried, and the proceedings before the justice did not constitute a preliminary examination as required by the statute; and that the larceny of which the defendant was convicted was two petit larcenies, the value alleged to have been stolen being improperly aggregated to exceed twenty-five dollars, the sum necessary to constitute grand larceny under the statute.

A decision of the first question is not necessary in this case, from the fact that the defendant was acquitted of the crime of burglary upon the trial. It is urged, however, that the mere fact of joining the charge of burglary and trying him upon it is to be presumed to have prejudiced the defendant upon his trial for the larceny. It is so well settled as to require no citation of authorities that burglary with intent to commit larceny and the larceny itself may be charged not only in the same indictment, but in the same count. And it has never been held that an acquittal upon the charge of the burglary will vitiate a verdict of guilty upon the charge of larceny. Indeed, the very reason for pleading it in this way is that in case of a failure to establish the charge of burglary the evidence may yet be sufficient to sustain a conviction for the larceny. If the evidence were known in advance to be sufficient to establish the higher crime, it would be needless to charge the larceny at all.

It is further objected that the...