State v. Tyrrell

• Decision Date: 10 June 1889
• Citation: 98 Mo. 354,11 S.W. 734
• Parties: STATE v. TYRRELL.
• Court: Missouri Supreme Court

11 S.W. 734

98 Mo. 354

STATE v. TYRRELL.

Supreme Court of Missouri.

June 10, 1889.

BURGLARY — INDICTMENT.

1. In an indictment for burglary, an allegation that defendant broke and entered "a certain building of one Neal Barman there situate, the same being used and occupied by the said Neal Barman as a saloon," sufficiently alleges the ownership of the building.

2. In an indictment for burglary with intent to steal, it is unnecessary to specify the ownership of the goods.

Appeal from circuit court, Andrew county; CYRUS A. ANTHONY, Judge.

D. G. Boone, Atty. Gen., for appellant. David Rea and Boogher & Williams, for respondent.

SHERWOOD, J.

The defendant was tried and convicted upon the second count of an indictment worded as follows: "And the grand jurors aforesaid, upon their oath aforesaid, do further present and charge that the said William Tyrrell, on the said 28th day of October, A. D. 1886, at the county of Andrew and state of Missouri, did feloniously and burglariously break into and enter a certain building of one Neal Barman, there situate, the same being used and occupied by the said Neal Barman as a saloon, by unlocking an outer door of said building by means of a false key, the same being a building in which divers goods, merchandise, and valuable things were then and there kept for sale and deposited, with intent the goods, merchandise, and valuable things in the said building then and there being, then and there feloniously and burglariously to steal, take, and carry away, against the peace and dignity of the state. JULIUS A. SANDERS, Prosecuting Attorney." The trial court, upon motion in arrest, held the count aforesaid insufficient in law; whereupon the state appealed. The grounds assigned in the motion in arrest were: "(1) Because the indictment is insufficient in law, and does not charge any offense against the defendant; (2) because the indictment herein does not state facts sufficient to constitute a cause of action against defendant; (3) because the indictment herein does not allege that Neal Barman or any other person owned the goods, wares, merchandise, and valuable things in the saloon building alleged to have been burglarized; (4) because the indictment does not allege any ownership of said building."

None of the objections urged against the indictment would have prevailed.

1. The allegation of ownership of the building was sufficient. It was in the form usually employed in such cases. Spencer v. State, 13 Ohio 401; 3 Chit. Crim. Law, 1117; Com. v. Hamilton, 15 Gray, 480; 2 Bish. Crim. Proc. §§ 39, 139.

2. Inasmuch as the gravamen of the charge was the burglary, it was unnecessary to specify the ownership of the goods. This is well settled. Archbold, treating of the crime under discussion, says: "The intent must appear to be to commit a felony in," etc; ...