State v. Short

• Decision Date: 24 September 1880
• Citation: 6 N.W. 584,54 Iowa 392
• Parties: THE STATE v. SHORT
• Court: Iowa Supreme Court

6 N.W. 584

54 Iowa 392

THE STATE v. SHORT

Supreme Court of Iowa, Des Moines

September 24, 1880

Appeal from Monroe District Court.

THE indictment charged the defendant as follows: For tat the defendant "did then and there, with intent to commit a public offense, to-wit: larceny, feloniously and willfully break and enter in the night time the dwelling-house of one T. H. Elder, then and there being in said house goods, wares and valuable articles kept by said Elder." The defendant pleaded not guilty and appeals.

AFFIRMED.

Henry L. Dashiell, for appellant.

J. F McJunkin, Attorney General, for the State.

OPINION

SEEVERS, J.

I.

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 offense, 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.

II. 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 establishes 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.

III. The evidence showed that Phoebe 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. Golden et al., 49 Iowa 48.

IV. The evidence showed that T. H. Elder and Phoebe 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....