Harlan v. State
| Decision Date | 28 April 1893 |
| Docket Number | 16,818 |
| Citation | 33 N.E. 1102,134 Ind. 339 |
| Parties | Harlan v. The State |
| Court | Indiana Supreme Court |
From the Tipton Circuit Court.
The judgment is reversed, with instructions to the court to sustain the motion for a new trial.
G. H Gifford, J. M. Fippen and C. H. Gifford, for appellant.
D. A Woods and A. G. Smith, Attorney-General, for the State.
The appellant was indicted in this cause for a felony, and was tried, found guilty, and sentenced to imprisonment in the county jail, and he prosecutes this appeal, assigning several errors.
The indictment was in two counts, the first charging, or attempting to charge, burglary, charging the breaking and entering into a "saloon building." The second count properly charged the defendant with the crime of petit larceny.
The appellant moved the court to quash the first count of the indictment, which motion was overruled, and he excepted, and assigns this ruling as error.
There was a trial by jury, and the jury returned a verdict of "guilty as charged in the second count of the indictment," and assessed the punishment at imprisonment for five months in the county jail, a fine of twenty-five dollars, and disfranchisement for one year.
Appellant filed a motion for a new trial, which was overruled, and he excepted, and this ruling is assigned as error.
The first alleged error discussed relates to the overruling of the motion to quash the first count of the indictment.
Counsel for appellant contend that the count does not describe any such building as the statute makes it burglary to break and enter. The statute designating what shall constitute the crime of burglary, describes certain buildings, specifically naming them, which, if any person breaks and enters into in the night time, with intent to commit a felony, he shall be guilty of burglary, and it is contended that a "saloon building" does not come within the definition of any of the buildings named in the statute. And we think it may very properly be questioned whether the description in the indictment of the building alleged to have been entered by the appellant does come within the definition of any of the buildings described in the statute. It is claimed by the counsel for the State, that a "saloon building" is a "storehouse" or "warehouse," which are designated in the statute, but the definitions given by lexicographers of the words "storehouse" and "warehouse" do not, in their terms, include "saloon buildings."
The trial resulting in a verdict of guilty of the crime charged in the second count of the indictment, was, in effect, a finding that the defendant was not guilty as charged in the first count, hence it is immaterial to determine and pass upon the question as to the sufficiency of the first count for if the court erred in the overruling of the motion to quash the first count, it was a harmless error for which...
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