Farris v. Com.

• Decision Date: 22 November 1890
• Citation: Farris v. Com., 90 Ky. 637, 14 S.W. 681 (Ky. Ct. App. 1890)
• Parties: FARRIS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

14 S.W. 681

90 Ky. 637

FARRIS v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 22, 1890

Appeal from circuit court, Jefferson county.

"To be officially reported."

Charles G. Richie, for appellant.

P. W Hardin, Atty. Gen., for the Commonwealth.

HOLT J.

The indictment against the appellant, Bud Farris, is, as it states, for "feloniously breaking a store-house with intent to steal, and stealing articles of value therefrom." In setting out in the body of it the acts constituting the alleged offense it says: "The said Bud Farris unlawfully and feloniously did break and enter the store-house of Tapp, Leathers & Co., * * * with the intent then and there to steal therefrom, and did unlawfully and feloniously take, steal, and carry away therefrom, one lot of pants, of the value of twenty-five dollars, the personal property of said firm, with the fraudulent intent to convert the same to his own use, and to permanently deprive said firm of its property therein." The statute upon which it is based provides: "If any person shall felonionsly, in the night or day, break any warehouse, store-house, office, shop or room in a steam, wharf, or other boat, whether such place be, or be not, a depository for goods, wares, or merchandise and whether the goods, wares, and merchandise be, or be not exposed for sale in such place, with intent to steal, or shall feloniously take therefrom, or destroy, any goods, wares, or merchandise, or other thing of value, whether the owner, or other person, be or not in such house, office, room, or shop, he shall be confined in the penitentiary not less than one nor more than five years." Gen. St. c. 29, art. 6, § 4.

A demurrer to it was presented, and the accused having been convicted, it is now urged that it should have been sustained upon the ground of a misjoinder of offenses. If open to this objection, it was proper to present it by demurrer. It is claimed that both the statutory offense of breaking the store-house with intent to steal, and the common law offense of grand larceny are charged. If this be true, then the objection was undoubtedly well taken, because section 126 of the Criminal Code provides that an indictment shall charge but one offense, save in cases enumerated in the succeeding section, and the two just named are not embraced by it. Is this indictment, however, of a dual character? Does it really charge two offenses? In proof that it does, counsel urge, if the portion which avers that the accused "did unlawfully and feloniously take, steal, and carry away" the property be omitted, there yet remains the charge of breaking into the store-house with intent to steal; and, if the latter be omitted, yet the charge of larceny remains; and this fact evidences a misjoinder of offenses. We do not think so. The gravamen of the offense denounced by the statute supra, is the breaking into the store-house with a felonious purpose. This being so, the indictment may properly charge not only that the breaking was with the intent to steal, but that the party...