Crosky v. State
| Decision Date | 20 October 1903 |
| Citation | 46 Fla. 122,35 So. 153 |
| Parties | CROSKY v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Dade County; Minor S. Jones, Judge.
Jacob Crosky was convicted of burglary, and brings error. Reversed.
Syllabus by the Court
1. In an indictment or information charging the crime of breaking and entering a building with intent to commit larceny, it is not necessary to allege the name of the owner of the articles in said building which the defendant intended to steal, yet where the said articles are alleged therein to be the property of a certain named person, it is incumbent upon the state to prove said ownership as laid, and a failure so to do will constitute a fatal variance.
COUNSEL Geo. A. Worley (R. H. Seymour, on the brief) for plaintiff in error.
J. B Whitfield, Atty. Gen., for the State.
The plaintiff in error, Jacob Crosky, was indicted, tried, and convicted in the circuit court of Dade county of the crime of breaking and entering 'the storehouse and barroom of one W. N. Woods, with intent to commit a felony, to wit, with intent to steal, take, and carry away certain goods and chattels therein being, of the value of twenty-five dollars of the property, goods, and chattels of the said W N. Woods.' The plaintiff in error was sentenced to confinement at hard labor in the State Penitentiary for a period of five years, and seeks reversal here by writ of error. Three errors are assigned, but all present the single question as to whether or not the testimony was sufficient to support the verdict, and hence they may be considered together. Setting forth the testimony in detail would be profitless. Suffice it to state that there is considerable conflict therein, but it plainly appears therefrom that although the building alleged to have been broken into and entered by defendant was the property of the said W. N Woods, as charged in the indictment, the goods and chattels therein contained were not the property of the said Woods. Does this fact constitute such a variance between the crime charged in the indictment and the evidence as to make it fatal and warrant a reversal? As was said by this court in Charles v. State, 36 Fla. 691, 18 South, 369, 'It is not necessary, in an indictment under our statute for breaking and entering a building in the nighttime with intent to commit a misdemeanor, by stealing, to allege tha the property intended to be stolen was actually in the building at the time of the breaking and entry thereof.' In Jones v. State, 18 Fla. 889, it was held that 'in an indictment for burglary in the nighttime, with intent to commit larceny of money, goods, and chattels, it is not necessary to aver what specific money, goods, or chattels were intended to be stolen, or the name of the owner thereof.' In Pells v. State, 20 Fla. 774, it was held that 'the rule is well settled that the ownership of the building so burglariously entered must be alleged in the indictment.' Also, see Givens v. State, 40...
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