State v. Simpson

• Decision Date: 09 October 1909
• Docket Number: 1,835.
• Parties: STATE v. SIMPSON.
• Court: Nevada Supreme Court

104 P. 244

32 Nev. 138

STATE v. SIMPSON.

No. 1,835.

Supreme Court of Nevada

October 9, 1909

Appeal fro District Court, Esmeralda County.

J. W Simpson was convicted of house breaking, and he appeals. Affirmed.

Clarence C. Ward, for appellant. R. C. Stoddard, Atty. Gen., for the State.

NORCROSS C.J.

The appellant was convicted of the crime of house breaking upon an indictment charging that the said defendant on the 18th day of July, 1908, or thereabouts, at the county of Esmeralda, did then and there in the daytime enter the dwelling house of John Doyle, and occupied by said John Doyle, with the intent then and there, and in said dwelling house, to steal the goods and chattels of the said John Doyle situate and being therein. From the judgment of conviction and the order denying his motion for a new trial, the said Simpson appeals.

There was proof showing, or tending to show, that the appellant herein entered the dwelling house occupied by the said John Doyle and his wife, and while therein opened the trunk of the said Mrs. Doyle, and was engaged in going through the same when frightened away by the return of Mrs. Doyle. It is contended by counsel for appellant that there is a fatal variance between the allegation in the indictment and the proof, in that there was no evidence that the defendant in any way disturbed any property belonging to the said John Doyle, and hence no evidence of an intent to steal the property of the said John Doyle. The Attorney General in his brief has cited authorities which he contends supports the position that, even though it were necessary to establish ownership of property in the said John Doyle, the fact that he was in the occupancy and control of the building was sufficient to make him in law a bailee of all of the property situate therein, and that as such bailee he would be regarded as having sufficient title to the property to support an allegation of ownership thereof for the purposes of the indictment. In the case of Kidd v. State, 101 Ga 528, 28 S.E. 990, the court said: "It is not essential that an indictment for burglary, which charges that the accused broke and entered a house with intent to commit a larceny therein, should distinctly describe the larceny in question. *** In the present case it was alleged that the goods which the accused intended to steal belonged to the prosecutor, and the proof showed that the title to the same was in his wife. We do not think this constituted a variance between the allegata and the probata. It did appear that the goods were in the possession of the husband and under his custody and control; and according to the principle laid down in Goode v. State, 70 Ga. 752, this was sufficient to authorize the allegation that the goods belonged to the prosecutor." The statute under which the defendant was convicted provides: "Every person who, in the daytime shall enter any dwelling house, *** with intent to steal, or to commit any felony whatever therein, is guilty of house breaking. ***" Comp. Laws, § 4713. It is unnecessary under this statute, to specifically...