Barnhart v. State

Decision Date15 February 1900
Citation56 N.E. 212,154 Ind. 177
CourtIndiana Supreme Court


Appeal from circuit court, Dekalb county; Joseph A. Woodhull, Special Judge.

Hiram Barnhart was convicted of burglary, and he appeals. Reversed, with instructions to sustain a motion in arrest of judgment.L. J. Blair and P. V. Hoffman, for appellant. Willis Rhoads, J. E. Pomeroy, W. L. Taylor, Atty. Gen., Merrill Moores, and C. C. Hadley, for the State.


Appellant was convicted of burglary. He assigns that the court erred in overruling his motions in arrest of judgment and for a new trial. The information charged that appellant, on April 8, 1899, at Dekalb county, Ind., “did then and there unlawfully, feloniously, and burglariously, in the nighttime, break and enter into the barn of one Frank Fiske, then and there situate, with intent then and there feloniously and burglariously to take, steal, and carry away certain pieces of meat then and there situate, said meat being then and there of the value of three dollars, contrary,” etc. Is a public offense stated with sufficient certainty to withstand the motion in arrest?

“Burglary” is defined in these words: “Whoever, in the nighttime, breaks and enters into any * * * barn, * * * with intent to commit a felony, is guilty of burglary.” Section 1929, Rev. St. 1881 (section 1929, Horner's Rev. St. 1897; section 2002, Burns' Rev. St. 1894). And “petit larceny”: “Whoever shall feloniously steal, take and carry, lead or drive away the personal goods of another, of the value of any sum less than twenty-five dollars, is guilty of petit larceny.” Section 1934, Rev. St. 1881 (section 1934, Horner's Rev. St. 1897; section 2007, Burns' Rev. St. 1894). Petit larceny, by the statutes of this state, is a felony. Short v. State, 63 Ind. 376. In the information under consideration the breaking and entry are sufficiently stated. But these do not constitute burglary. That crime is committed only when the breaking and entry are done “with intent to commit a felony.” The particular felony intended should be stated. The general charge, “with intent to commit a felony,” is not such a description as would enable the defendant to plead his conviction or acquittal in bar of another prosecution for the same offense. People v. Nelson, 58 Cal. 104; State v. Lockhart, 24 Ga. 420; State v. Williamson, 3 Heisk. 483;Portwood v. State, 29 Tex. 47. It would be adequate, at least as against a motion in arrest, to allege that the defendant broke and entered into the building, “with intent to commit larceny therein.” People v. Shaber, 32 Cal. 36;State v. Jennings, 79 Iowa, 513, 44 N. W. 799. But, if the intent be not so laid, the pleader should aver that the defendant broke and entered with intent to do certain things, the doing of which is denounced by the statute as a felony. If a crime-for example, conspiracy to commit a felony-is not complete without the performance of certain acts “with intent to commit a felony,” the elements of the intended felony must be fully disclosed, so that the court may see that a public offense is in fact charged. Landringham v. State, 49 Ind. 186;State v. McKinstry, 50 Ind. 465;Scudder v. State, 62 Ind. 13;Miller v. State, 79 Ind. 198;Smith v. State, 93 Ind. 67;McKee v. State, 111 Ind. 378, 12 N. E. 510;Musgrave v. State, 133 Ind. 297, 32 N. E. 885.

But manifestly the pleading of an intended felony as an element of some other crime is a very different thing from pleading the intended felony as a committed felony for which the defendant is to be tried. In the case of a breaking and entry with intent to commit larceny, the crime of burglary is complete, whether the one who broke and entered effectuated his intent to commit larceny or not. If he accomplished his larcenous purpose, and were being held to trial for larceny, the indictment or information, to be sufficient, must contain, among other things, a description of the property, and state the value thereof and the name of the owner. And this is so, not because that species of the genus felony might not be otherwise described, but because the defendant is entitled to such a particularization of the individual instance of the species larceny as will protect him from a second prosecution for the same offense. “Feloniously to steal, take, and carry away one pair of boots, of the value of five dollars, belonging to John Smith,” is not a statement of the elements of larceny in general, but does denote a particular case of that crime. Larceny, in general, is committed whenever one “feloniously steals, takes, and carries away the personal goods of another.” Now, if the one who breaks and enters does not carry out his larcenous design, how can the pleader give the particulars of the felony intended, but not committed? How can he describe the goods, state the value, and name the owner, if the building contain many articles, of various values, of divers owners? And it has been held by this court that indictments for burglarious breakings and entries with larcenous intent were sufficient that failed to describe the goods or state the value. Hunter v. State, 29 Ind. 80;Short v. State, 63 Ind. 376;Dawson v. State, 65 Ind. 442;Burrows v. State, 84 Ind. 529;Choen v. State, 85 Ind. 209;Sims v. State, 136 Ind. 358, 36 N. E. 278. In each of these cases the owner of the goods was named. By naming the owner, in connection with the other particulars, the pleader disclosed affirmatively all the elements of the intended felony, namely, the felonious stealing, taking, and carrying away of the personal goods of another. And though, in conceivable instances, the pleader may not be able to state the name of the owner any more than the character and value of the goods that were the object of the contemplated larceny, he can and must show directly and affirmatively that what he deems a felony is a legal possibility. Of the elements of larceny, an indispensable one is that the property shall be susceptible of being feloniously stolen, taken, and carried away. By our s...

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12 cases
  • Williams v. State
    • United States
    • Supreme Court of Indiana
    • May 9, 1919
    ...... only state facts showing the conspiracy, but also charge the. felony with the same particularity as though the accused was. to be tried for the felony alone. Allen v. State (1914), 183 Ind. 37, 45, 107 N.E. 471;. Green v. State (1901), 157 Ind. 101, 60. N.E. 941; Barnhart v. State (1899), 154. Ind. 177, 56 N.E. 212; Smith v. State . (1884), 93 Ind. 67; Woodsmall v. State . (1913), 179 Ind. 697, 102 N.E. 130. . .          Our. Criminal Code, § 2065 Burns 1914, § 194, Acts 1905. p. 584, specifies the grounds or reasons proper to be. ......
  • Williams v. State
    • United States
    • Supreme Court of Indiana
    • May 9, 1919 tried for the felony alone. Allen v. State, 183 Ind. 37, 45, 107 N. E. 471;Green v. State, 157 Ind. 101, 60 N. E. 941;Barnhart v. State, 154 Ind. 177, 56 N. E. 212;Smith v. State, 93 Ind. 67;Woodsmall v. State, 179 Ind. 697, 102 N. E. 130. [2][3] Our Criminal Code, section 2065, Burns 19......
  • Bloch v. State
    • United States
    • Supreme Court of Indiana
    • October 13, 1903
    ......Such allegations are not necessary in a prosecution for a violation of said section 2003 (1930) supra. Com. v. McDonald, 5 Cush. 365; Reg. v. Johnson, 10 Cox, C. C. 13; Burrows v. State, 84 Ind. 529;Barnhart v. State. 154 Ind. 177, 180, 56 N. E. 212;People v. Ah Ye, 31 Cal. 451;State v. Hughes, 76 Mo. 323;State v. Utley, 82 N. C. 556;People v. Moran, 123 N. Y. 254, 25 N. E. 412, 10 L. R. A. 109, 20 Am. St. Rep. 732, and cases cited; People v. Jones, 46 Mich. 441, 9 N. W. 486; State v. Wilson, 30 Conn. ......
  • Berry v. State
    • United States
    • Supreme Court of Indiana
    • February 12, 1929
    ...... offense is in fact charged. Landringham v. State, 49 Ind. 186; State v. McKinstry, 50 Ind. 465; Scudder v. State, 62 Ind. 13; Miller v. State, 79 Ind. 198; Smith v. State, 93 Ind. 67; McKee v. State,. 111 Ind. 378, 12 N.E. 510; Musgrave v. State, 133 Ind. 297, 32 N.E. 885; Barnhart. v. State, 154 Ind. 177, 56 N.E. 212.". . .          In. Williams v. State (1919), 188 Ind. 283, 123. N.E. 209, it is said: "'Where an indictment charges. a conspiracy and also an overt act, which in itself is. criminal, the conspiracy is not merged in the higher offense,. where ......
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