State v. Stokes
| Decision Date | 20 October 1950 |
| Docket Number | No. 28643,28643 |
| Citation | 94 N.E.2d 545,228 Ind. 574 |
| Parties | STATE v. STOKES. |
| Court | Indiana Supreme Court |
J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., Merl M. Wall, Deputy Atty. Gen., Vance M. Waggoner, Pros. Atty., Rushville, for appellant.
Kiplinger & Kiplinger, Rushville, for appellee.
The appellee herein was charged by affidavit filed in the Rush Circuit Court with the crime of burglary in the second degree as defined by § 10-701, subsection (b), Burns' 1942 Repl., being Acts of 1941, ch. 148, § 4. The appellee filed a motion to quash this affidavit on the second and fourth grounds provided by § 9-1129, Burns' 1942 Repl., Acts 1905, ch. 169, § 194. This motion was sustained and said affidavit was quashed. From this ruling the appellant brings this appeal.
The appellee was charged in this affidavit with breaking and entering into a building not a dwelling house or place of human habitation 'known as Loyal Order of the Moose, Rushville Lodge No. 1556'. It is admitted by the parties that it was not alleged in the affidavit who the owner of the premises was or who occupied the same at the time of the alleged unlawful breaking and entering and that it was solely for this reason that the motion to quash was sustained. The appellant contends that ownership or occupancy of the building where the alleged breaking and entering occurred is not a material element of the crime of burglary and therefore it was not necessary that the same be alleged in charging the crime. Appellant insists it was only necessary to sufficiently identify or describe the building entered.
By the great weight of authority an indictment for burglary must allege directly the ownership of the building entered. Generally there are two reasons advanced for the majority rule: first, that the ownership should be pleaded for the purpose of showing that the building broken into was not the building of the accused or that the accused did not have the right to enter the building; and, second, that the ownership should be alleged for the purpose of so identifying the offense as to protect the accused against a subsequent prosecution for the same offense. This Court, in the case of McCrillis v. State (1879), 69 Ind. 159, has sanctioned the majority rule as above set out. In that opinion this Court stated: 'There can be no doubt that it was necessary to state in the indictment the true name of the owner of the property burglariously entered,...
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Stearsman v. State, 29373
...of so identifying the offense as to protect the accused against a subsequent prosecution for the same offense.' State v. Stokes, 1950, 228 Ind. 574, 575, 94 N.E.2d 545, 546. The affidavit herein clearly shows that the Housing Authority of the City of Evansville was the tenant in possession ......
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Graves v. State
...either the ownership or the possession of the property. This defect was fatal when raised by a Motion to Quash. In State v. Stokes (1950), 228 Ind. 574, 94 N.E.2d 545, the court 'By the great weight of authority an indictment for burglary must allege directly the ownership of the building e......
- State ex rel. Hunt v. Orange Circuit Court, O-122
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Heiny v. State
...and particularity requirements of an indictment charging burglary and the justifications for them are set out in State v. Stokes, (1950) 228 Ind. 574, 94 N.E.2d 545, 546. "By the great weight of authority an indictment for burglary must allege directly the ownership of the building entered.......