State v. Hupp.
| Decision Date | 27 June 1888 |
| Citation | 31 W.Va. 355 |
| Court | West Virginia Supreme Court |
| Parties | State v. Hupp. |
Under our statute, an indictment for "house-breaking" must allege the " ownership " of the house which has been broken and entered.
An allegation in the indictment that "the prisoner a certain outhouse and cellar not adjoining to nor occupied with the dwellinghouse of J. W. Hale, there situated, in the night-time feloniously did break and enter, with intent," etc., does not allege the owner-" ship of the outhouse and cellar to be in any one, and the indictment, as an indictment for "house-breaking," is fatally defective.
But as the indictment alleged that the prisoner did break and enter the cellar," and one keg of wine, of the value of fifteen dollars, of the goods and chattels of J. W. Hale in the said house and cellar then and there being found then and there feloniously did steal," etc., it is good as an indictment for petit larceny.
On trial of the issue on the indictment, the jury returned a verdict of "guilty as charged in the indictment." The prisoner moved in arrest of judgment, which the court overruled, and sentenced the prisoner to the penitentiary. Held. Judgment for felony could not be rendered on the verdict, and the court should, on the verdict, have rendered a proper judgment for petit larceny.
C. T. Caldwell and V. B. Archer for plaintiffs in error. Attorney-General Alfred Caldwell for the State. Johnson, President:
At a Circuit Court held in March, 1888, in Wirt county, the defendants, David Hupp and "Bud" Morris, were, as the finding stated, indicted for felony. The indictment is as follows:
" The grand jurors of the State of West Virginia, in and for the body of the county of Wirt, and now attending the said court, upon their oaths present that David Hupp and Bud Morris, on the day of August. 1887, in the said county, a certain out-house and cellar not adjoining to nor occupied with the dwelling-house of J. W. Hale, there situate, in the night-time feloniously did break and enter, with intent the goods and chattels of the said J. W. Hale in the outhouse and cellar then and there being feloniously to take, steal, and carry away, and one keg of wine, of the value of fifteen dollars ($15.00.), of the goods and chattels of the said J. W. Hale in the said out-house and cellar then and there being found, then and there feloniously did take, steal, and carry away, against the peace and dignity of the State.""
On the 28th day of March, 1888, the defendants pleaded not guilty to the indictment, and a jury was impanelled and sworn to try the issue, and on the same day returned a verdict as follows:" We, the jury, find the defendants, David Hupp and Bud Morris, guilty as charged in the within indictment." The defendants, by counsel, moved in arrest of judgment, which motion was overruled, and the court sentenced each of the prisoners to confinement in the penitentiary for the term of three years. A bill of exceptions shows the motion in arrest of judgment was based on the ground that the indictment did not aver the ownership of the property alleged to have been broken into. To the judgment the defendant obtained a writ of error.
The question here presented is: Was the court authorized to render the judgment and sentence it did upon the verdict? The verdict is, in general terms, that the defendants were guilty as charged in the indictment. With what were they charged in the indictment? Was it for felony or misdemeanor? It was evidently intended by the indictment to charge " house-breaking," which is a felony. In order to charge " house-breaking," all the authorities agree that the indictment shall allege the ownership of the house which has been broken into. 1 Whart. Grim. Law, § 816; Webster's Case, 80...
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