State v. Reece.

• Citation: 27 W.Va. 375
• Court: Supreme Court of West Virginia
• Decision Date: 06 February 1886
• Parties: State v. Reece.

27 W.Va. 375

State

v.Reece.

Supreme Court of Appeals of West Virginia.

Submitted January 15, 1886.

Decided February 6, 1886.

1. An indictment for breaking and entering a storehouse not adjoining a dwelling-house with intent to commit larceny, which fails to state the ownership of the storehouse so broken and entered, is fatally defective, (p. 377.)

2. If such indictment con tains sufficient averments to make it a good indictment for grand larceny, the charges in regard to the breaking and entering the storehouse may be treated as surplusage, and a conviction upon the indictment may be sustained, (p. 377)

3. The possession of stolen goods is a circumstance lending to show that the person found in the possession is the thief, and the jury may consider it in connection with all the other attending circumstances and facts in proof, but of itself it is not prima facie evidence of guilt, (p. 379.)

4. An indictment for larceny charges that the goods stolen were the property of Robert Buster, while the proof shows that the owner of the goods was James Robinson Buster, sometimes called Rob., Robin and Bob. Buster, to which names he answered. HELD:

In the absence of evidence to show that the owner of the goods was some other person than the one named in the indictment the variance is not fatal, (p. 379.)

5. A case in which the action of the trial-court refusing to set aside the verdict upon the alleged ground, that it was contrary to the evidence, is sustained and confirmed by this Court.

J. H. McGinnis and L. D. Tsbell tor plaintiff in error.

Alfred Caldwell, Atterney-General, for the State.

Snyder, Judge:

Joseph Reece was on February 27, 1885, indicted forfelony in the circuit court of Fayette county. He demurred to the indictment, and his demurrer being overruled he pleaded not guilty; the case was tried by jury and a verdict of guilty returned, which the defendant moved the court to set aside, but the court overruled his motion and sentenced him to the penitentiary for five years. The defendant excepted to the action of the court refusing him a new trial and saved a bill of exceptions, in which all the facts proved are certified.

The indictment charges "that Joseph Reece on December 21, 1883, in said county, a certain storehouse, not adjoining to or occupied with the dwelling-house of one Robert Buster, there situate, in the night-time, did feloniously break and enter with intent the goods and chattels of the said Robert Buster, in the storehouse then and there being, feloniously to steal, take and carry away; and one overcoat," &c, (specifying various articles of goods and statins: their aggregate value at $70.00,) "of the goods and chatties of the said Robert Buster, in the said storehouse then and there found, then and there feloniously did steal, take and carry away, against," &c.

it will bo observed that this indictment wholly fails to state the owner of the storehouse in which the offence was committed. It merely states that it was "a certain storehouse, not adjoining the dwelling house of Robert Buster, there situate," 4c. It the storehouse had been ten miles from the dwelling house of Buster and had been owned by the accused, these facta would be entirely consistent with the indictment. It is essential to state the ownership of the house entered in cases of burglary. 1 Whart. Cr. L., sec. 816. The statutory offence of entering a store or house not occupied or in connection with a dwelling-house is in its essential ingredients the same as burglary and every reason which would require an indictment to state the ownership of the house in the one case would likewise require it in the other. Such statement is indispensable in either case. This indictment therefore is fatally detective so far as it attempts to charge an offence under the provisions ot sees. 12 and 13 of ch. 145 of the Code, as amended by ch. 148, Acts of 1882. But treating that part of the indictment as surplusage, I am clearly of opinion that it is a good and sufficient indictment for grand larceny under the fourteenth section of said chapter. State v. Bowes, 26 W. Va. 110; Madame Restell's JJase, 1 Com. 379.

The penalty for the offence defined under the fourteeth section is the same as that sought to be charged in this case under the thirteenth section of said chapter, and consequently the two offences are felonies of the same grade. The court therefore properly overruled the demurrer to the indictment.

The verdict found "the goods stolen to be of the value ot. $30.00," which is sufficient to constitute grand larceny under the statute. Sec. 14, eh. 145, Code, p. 683.

It is contended, however, that the facts proved were insufficient to warrant the verdict, and that therefore the court erred in refusing to set aside the verdict and award the defendant a new trial, The defendant offered no evidence whatever on the trial and the State proved, that on the night of December 23, 1883, the storehouse of James Robinson Buster, in Fayette count, was broken and entered and the goods mentioned in the indictment, the property of said Buster, of the value therein charged, were feloniously taken and stolen therefrom; that the entry into said house was effected through a window, a part of which had been cut away; the defendant was a mechanic and had done work on said house and constructed the window through which the entry was made: the defendant was seen late that night at Coal Valley about two miles from said storehouse; he and one Smith came from Coal Valley to Armstrong bridge, a place distant from the storehouse about a quarter of a mile; upon nearing said bridge they met a boy, one Adkins, who remarked to defendant: "I began to think you were not coming back to-night?" Smith then left the defendant and Adkins, he going up Armstrong creek and they up the road in the direction of the storehouse which was by the side of the road on the way to defendant's home...