Davis v. State

• Decision Date: 13 February 1906
• Citation: 40 So. 179,51 Fla. 37
• Parties: DAVIS v. STATE.
• Court: Florida Supreme Court

40 So. 179

51 Fla. 37

DAVIS v. STATE.

Florida Supreme Court, Division A.

February 13, 1906

Error to Circuit Court, Calhoun County; John W. Malone, Judge.

Elijah Davis was convicted of burglary, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where an indictment for feloniously and burglariously breaking and entering a building contains no allegation as to the ownership of the building, the indictment is fatally defective, and a motion to quash it should be sustained.

An indictment which charges that the accused feloniously and burglariously did break and enter, etc., 'that certain building commonly known as and called the storehouse of one B. F. Pope,' and contains no allegation as to the ownership of the building, is fatally defective; and a motion to quash the indictment should be sustained, since the quoted words are merely descriptive of the building, and are not an allegation as to the ownership of the building.

COUNSEL Price & Watson, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

WHITFIELD J.

An indictment was presented by the grand jury in the circuit court for Calhoun county, charging in a single count that Elijah Davis, on September 11, 1904, 'with force and arms, at and in the county aforesaid, a certain building, to wit, that certain building commonly known as and called the storehouse of one B. F. Pope, there situate, feloniously and burglariously did break and enter, with the intent then and there to commit the crime of larceny,' etc.

A motion to quash the indictment was denied.

The defendant was convicted, and on writ of error here assigns as error the denying of the motion to quash the indictment.

In the case of Pells v. State, 20 Fla. 774 where it is charged that the accused feloniously and burglariously did break and enter, etc., 'a certain building, to wit, the main exhibition building of the Middle Florida Agricultural and Mechanical Fair Association,' this court said: 'The indictment is bad. * * * The ownership of the property is defectively stated. * * * If the ownership of the property is not stated, non constat but that the building was the property of the defendant. * * * The rule is well settled that the ownership of the building so burglariously entered must be alleged. The name of the owner of the * * * building which was broken and entered must be stated with accuracy.' Heard's Criminal Law, 436; 3 Ency. Pl. & Pr. 757.

In the Pells Case the indictment was held to be fatally defective because the allegation as to the ownership of the building did not sufficiently designate the owner. In this case there is no allegation as to the ownership of the property; the words used being merely descriptive of the building which it is charged the accused 'feloniously and burglariously did break and enter,' etc.

The reasons for requiring the ownership of the building the defendant is charged with feloniously and burglariously breaking and entering to be alleged in the indictment are (1) For the purpose of showing on the record that the building alleged to have been broken into was not the property of the accused, inasmuch as one cannot commit the offense of breaking and entering his own building; (2) for the...