Sims v. The State

• Decision Date: 31 January 1894
• Docket Number: 17,178
• Citation: 36 N.E. 278,136 Ind. 358
• Parties: Sims v. The State
• Court: Indiana Supreme Court

36 N.E. 278

136 Ind. 358

Sims v. The State

No. 17,178

Supreme Court of Indiana

January 31, 1894

From the Henry Circuit Court.

Judgment is affirmed.

J. M Morris, for appellant.

A. G Smith, Attorney-General, and F. T. Edenharter, for State.

OPINION

McCabe, J.

The appellant was tried, convicted of burglary, and sentenced to the State prison for four years, in the court below, on the following indictment:

"The grand jurors of said State of Indiana, impaneled, charged, and sworn in the Henry Circuit Court, to inquire within and for the body of said county of Henry, upon their oath, charge and present that George Sims, on the 10th day of July, 1893, at said county and State, did then and there unlawfully, feloniously, burglariously, and forcibly, in the night time, break and enter the dwelling house of Robert Overman, then and there situate, with intent, then and there and thereby, feloniously, burglariously, and forcibly to steal, take and carry away the goods, chattels, and property of said Robert Overman, therein contained, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana."

The first assignment of error calls in question the action of the trial court in overruling a motion to quash the indictment.

The only objection urged to the indictment is that it charges the intent to have been "to steal, take and carry away the goods, chattels, and property of said Robert Overman;" it is insisted that the word "property" includes both real estate, as well as "goods and chattels," and that real estate is not subject to larceny; and hence, if the pleader meant real estate by the use of the word "property," it charged an impossible intent.And it is contended that inasmuch as it is not certain which kind of property was intended to be stolen, the indictment is too uncertain as to the crime intended to be charged.It will be observed that it is the act and intent that constitute the offense.The act was breaking into the dwelling house; the intent is charged to have been to steal, take, and carry away the goods, chattels, and property of said Overman.1 Burns' Revision of 1894, section 2002.

The statute provides that "no indictment or information shall be deemed invalid, nor shall the same be set aside or quashed * * for any of the following defects: * * * For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and the person charged."Section 1825, Burns' Revision of 1894.

By leaving out the word "property" in the indictment it will leave a perfect indictment, and this section of the statute requires us, in such a case, to treat the word as surplusage, and forbids us to set aside or quash the same for such defect.Trout v. State,111 Ind. 499...