Mitchell v. Com.

• Decision Date: 12 March 1889
• Citation: 11 S.W. 209,88 Ky. 349
• Parties: MITCHELL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

11 S.W. 209

88 Ky. 349

MITCHELL v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 12, 1889

Appeal from criminal court, Campbell county; G. G. PERKINS, Judge.

Butter Hawkins, for appellant.

P. W Hardin, for the Commonwealth.

HOLT J.

The indictment against the appellant, William Mitchell, charges him with feloniously breaking and entering the dwelling-house of Julius Schultz, by forcibly opening a cellar-door, and feloniously taking therefrom certain articles of property (naming them,) of value, belonging to Schultz. Section 4 art. 5, c. 29, Gen. St., provides: "If any person shall feloniously take out of or from any church, chapel, or meeting-house, school-house, court-house, or other public building, any goods or chattels or other thing of value belonging thereto, or shall rob any person in his dwelling house or place, or in any booth or tent in a fair or market he, his wife, children, or servants, or other person then being within, or shall feloniously break any dwelling-house, or any part thereof, or any outhouse belonging to or used with any dwelling-house, and feloniously take away anything of value, although the owner or any person may not be there, he shall be confined in the penitentiary not less than two nor more than ten years."

The accused, upon conviction, made a motion in arrest of judgment, which, under our practice, can only be sustained when the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. The ground urged in support of it is that the indictment does not charge, as is necessary in case of larceny, that the taking was with the felonious intention of depriving the owner permanently of his property, and converting it to the use of the taker without the owner's consent. It does, however, aver that the accused feloniously broke and entered the dwelling-house, giving the manner of it; that he feloniously took the property therein named; and that it was of value. It conforms to the wording of the statute, and the offense as stated in the statute is complete within itself. It is the creature of the statute; and where this is so it is, as a general rule, sufficient to describe the offense in the language of the statute. 1 Whart. Crim. Law, § 364. The case of Ward v. Com., 14 Bush, 233, and upon which the appellant relies, is distinguishable from this one. It was an indictment under the same section of the statute as this one, but under that clause of it which provides: "If any person shall rob any person in his dwelling house or place," etc. It is never sufficient to charge an offense merely by way of legal conclusion. If a statute refers to a common-law offense by its popular name, as, for instance, "robbery," and proceeds to impose a penalty for its commission, it is not sufficient to charge the accused with its commission in the statutory terms alone. 1 Whart. Crim. Law, § 372. In such a case the pleader must define the offense by stating the common-law elements necessary to its commission.

The evidence shows that the property was taken out of a cellar under the dwellinghouse; there being no internal communication between them. It was necessary to go out of the house into the yard to enter the cellar. The door to it opens out into the open air. It had no fastenings, but could not be opened without the use of force. It is therefore now urged that the cellar was no part of the dwelling-house, and that the accused, if guilty, is only so of a trespass and petit larceny. There is a diversity of decision as to what does, and what does not, in law, constitute a part of a dwelling-house. Some cases include all within the curtilage, and this, according...