State v. Mack

• Decision Date: 06 January 1891
• Citation: 25 P. 639,20 Or. 234
• Parties: STATE v. MACK.
• Court: Oregon Supreme Court

25 P. 639

20 Or. 234

STATE v. MACK.

Supreme Court of Oregon

January 6, 1891

Appeal from circuit court, Multnomah county; L.B. STEARNS, Judge.

The defendant was indicted by the grand jury of Multnomah county and convicted, from which judgment this appeal is taken. There is no bill of exceptions, and the only error relied upon for a reversal is the insufficiency of the indictment to sustain the judgment. The charging part of the indictment is as follows: "The said John Mack on the 3d day of November, A.D.1890, in the county of Multnomah, and state of Oregon, did unlawfully, feloniously, and burglariously break and enter a dwelling-house, namely, the dwelling-house of one E.A. Cunningham, with intent on the part of him, the said John Mack, to commit the crime of larceny therein contrary," etc.

(Syllabus by the Court.)

An indictment for burglary which charges that M. on the 3d day of November, A.D. 1890, in the county of M., and state of Oregon, did unlawfully, feloniously, and burglariously break and enter a dwelling-house, namely, the dwelling-house of one E. A. C., with the intent on the part of him, the said M.m to commit the crime of larceny therein, is insufficient to sustain a conviction.

Where the error relied upon on appeal appears from the judgment roll, no bill of exceptions is necessary.

The objection that the facts stated in an indictment do not constitute a crime may be taken for the first time in the appellate court, nd is not waived by failing to demur or move in arrest of judgment in the trial court.

Gilbert J. McGinn and S.H. Green, for appellant.

T.A. Stevens, Dist.Atty., and W.T. Hume, for the State.

STRAHAN C.J., (after stating the facts as above.)

This record presents but a single question, and that is the sufficiency of the indictment. The pleader by this indictment attempted to charge the crime of burglary defined and made punishable by section 1758, Hill's Code. That section punishes any person who shall break and enter any dwelling-house in the night-time, in which there is, at the time, some human being, with intent to commit a crime therein; or, having entered with such intent, shall break any such dwelling-house in the night-time; or be armed with a dangerous weapon therein; or assault any person lawfully therein. The indictment fails to charge that the breaking and entry was in the night-time, or that there was in the house some human being. Under this section, these are a part of the essential elements of the crime of burglary, without which the defendant is not brought within the statute punishing that offense. Section 1759 makes the same acts punishable if committed in the day-time, and, for the reason already suggested, a conviction...