State v. Short
| Decision Date | 24 September 1880 |
| Parties | STATE OF IOWA v. SHORT. |
| Court | Iowa Supreme Court |
Appeal from Monroe district court.
The indictment charged the defendant as follows: For that the defendant “did then and there, with intent to commit a public offence, to-wit, larceny, feloniously and wilfully break and enter, in the night-time, the dwelling-house of one T. H. Elder, there then and there being in said house goods, wares, and valuable articles kept by said Elder.” The defendant pleaded not guilty and appeals.Henry L. Dashiell, for appellant.
J. F. McJunkin, Att'y Gen., for the State.
1. It is urged that the indictment is insufficient because it does not charge the breaking and entering was “burglarious.” That is, that the omission of such word constitutes a fatal objection to the indictment.
The statute under which the indictment was found provides: “If any person break and enter any dwelling-house in the night-time, with intent to commit a public offence, he shall be deemed guilty of burglary. Code, § 3891. The breaking and entering with the required intent, constitutes the statutory crime. This is clearly charged, and the defendant is deemed guilty of burglary because the statute so provides. The material thing is the intent with which the breaking is done. This is sufficiently stated in the indictment.
2. The evidence shows that the name of the party charged to have been injured is Thomas H. Elder. The indictment states the name to be T. H. Elder. The evidence clearly established that Thomas H. Elder and T. H. Elder is the same person. The substantial rights of the defendant were not prejudiced by the refusal of the court to charge the jury that if they found the facts above stated to be true, they must acquit. Code, § 4306.
3. The evidence showed that Phœbe Elder was the owner of the property referred to in the indictment as the dwelling-house of T. H. Elder.” But it also showed that T. H. Elder was in possession as hereinafter stated. This variance between the indictment and proof is not sufficient to entitle the defendant to an acquittal. The State v. Goldur et al. 49 Ia. 48.
4. The evidence showed that T. H. Elder and Phœbe Elder were husband and wife, and that the house entered was their homestead, and that T. H. Elder was the head of the family. We think the house was in the possession, for the purposes of this case, of T. H. Elder. Being the head of the family, he had the possession and control of the...
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