Davis v. State

• Decision Date: 08 March 1915
• Docket Number: (No. 237.)
• Citation: 174 S.W. 567
• Parties: DAVIS et al. v. STATE.
• Court: Arkansas Supreme Court

174 S.W. 567

DAVIS et al. v. STATE.

(No. 237.)

Supreme Court of Arkansas.

March 8, 1915.

Appeal from Circuit Court, Yell County; A. B. Priddy, Special Judge.

C. C. Davis and another were convicted of burglary, and they appeal. Affirmed.

W. P. Strait, of Morrilton, for appellants. Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

SMITH, J.

Appellants were tried under an indictment containing two counts; the first charging them with burglary, and the second charging them with grand larceny. They were convicted on the first count, and have appealed from the judgment pronounced upon the verdict of the jury.

It is first insisted that the demurrer should have been sustained to the indictment for the reason that it did not sufficiently describe the larceny which appellants intended to commit; and it is also alleged that there is a variance between the allegation of the indictment, reciting the names of the members composing the partnership whose store was burglarized, and the proof on that subject. The indictment alleges that appellants —

"did willfully, unlawfully, feloniously, and burglariously break and enter the store building and house of J. M. Harkey's Sons, a partnership composed of O. J. Harkey and R. L. Harkey, with the willful, unlawful, felonious, and burglarious intent to commit a known felony, to wit, grand larceny, by unlawfully, willfully, burglariously, and feloniously stealing, taking, and carrying away $20, lawful gold, silver, and paper money of the United States, the personal property of the said J. M. Harkey's Sons, a partnership aforesaid, and composed as aforesaid, with the unlawful, felonious, and burglarious intent to deprive the said owners of their said property, as aforesaid."

The indictment sufficiently describes the felony which appellants intended to commit. "The rule is well established that although in burglary and statutory housebreaking the intent, as defined by the law, is simply to commit a felony, it is not sufficient in the indictment to follow these general words, but the particular felony intended must be specified. The allegation of the ulterior felony intended need not, however, be set out as fully and specifically as would be required in an indictment for the actual commission of the felony. It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal, or commit the crime of larceny, rape, or arson. The word `felony' is a generic term employed to distinguish certain high crimes, as murder, robbery, and larceny, from other minor offenses known as misdemeanors. The averment that the accused has broken and entered a dwelling house for the purpose of committing a felony fails wholly to apprise him of the specific offense which it is claimed he intended to commit. The defendant is not to be oppressed by the introduction of evidence which he cannot be prepared to meet. By statute in some states, however, it is provided that a general allegation of felonious intent, without describing the particular felony intended to be committed, will be sufficient. And in indictments for burglary with intent to commit larceny it is not necessary to specify the particular goods and chattels the defendant intended to steal, and such want of specification does not prevent the plea of former acquittal or conviction; for the plea is available if the same burglarious breaking and entering is the essential ingredient in both charges. When no property of any value is discovered by the accused after he has forcibly broken and entered the building with felonious intent, the better rule is that he is guilty of burglary, since the guilty purpose is the essence of the offense." 4 R. C. L. § 29, p. 436.

It will be observed the indictment alleges that the partnership of J. M. Harkey's Sons was composed of O. J. Harkey and R. L. Harkey; but, while the proof shows the store broken into was the property of the partnership known as J. M. Harkey's Sons, the proof also shows that the correct names of the members of this firm are J. N. Harkey and O. L. Harkey. This variance is immaterial. Andrews v. State, 100 Ark. 184, 139 S. W. 1134; Hughes v. State, 109 Ark. 403, 160 S. W. 209; Ivy v. State, 109 Ark. 446, 160 S. W. 208.

It is also insisted that the evidence is not sufficient to support the verdict, and that the court erred in admitting proof of the commission of other felonies on the night the Harkey's Sons store was burglarized in the town of Ola, where that store was located. Appellants, with another companion, arrived in Ola about 10 p. m., and were seen on the streets about midnight. Five stores were...