State v. Wright

• Decision Date: 19 May 1890
• Parties: STATE v. WRIGHT et al.
• Court: Oregon Supreme Court

24 P. 229

19 Or. 258

STATE v. WRIGHT et al.

Supreme Court of Oregon

May 19, 1890

Appeal from circuit court, Union county; JAMES A. FEE, Judge.

The grand jury of Union county, Or., returned into court the following indictment, omitting the caption and introductory part: "Henry Wright and James Allen are accused by the grand jury of the county of Union and state of Oregon, by this indictment, of the crime of burglary, committed as follows: The said Henry Wright and James Allen then and there, acting together on the 28th day of November, A.D 1888, in the county of Union and state of Oregon, unlawfully feloniously, and burglariously broke and entered a granary the same being then and there a building in which there was at the time property kept, to-wit, wheat, the same being then and there the personal property of one John N. Smith, with the intent then and there and thereby they, the said Henry Wright and James Allen, the said wheat, so kept in said granary as aforesaid, unlawfully and feloniously to take steal, and carry away, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon. Dated at Union, in the county aforesaid this 26th day of September, A.D. 1889. J.L. RAND, District Attorney." The defendants were duly tried thereon, and found guilty by a jury, and sentenced to the penitentiary for the term of three years each. After their conviction, and before sentence, they moved in arrest of judgment, for the reason that the name of the owner of the building alleged to have been broken by them is not stated in the indictment. This motion was overruled by the court, to which an exception was taken, and that presents the sole question on this appeal.

(Syllabus by the Court.)

Under Hill's Code OR. § 1270, when the forms of indictment given in the appendix to the Code are inapplicable, other forms, as nearly similar as the case will permit, may be used.

. Form No. 13, given in the appendix to the Code, is for the crime of burglary defined by section 1758, and is sufficient, though it does not give the name of the owner of the building. An indictment for burglary, under section 1760, otherwise sufficient, which does not give the name of the owner of the building broken and entered, is sufficient, under section 1270 of the Code. Such an indictment is as nearly similar to the form given in the appendix to the Code as the nature of the case would permit.

T.H. Crawford, for appellants. J.L. Rand, Dist.Atty., and J.J. Balleray, for the State.

STRAHAN, J., (after stating the facts as above.)

The motion to arrest the judgment made by the appellants presents but one question, and that is the sufficiency of the indictment. The point of objection is that, in an indictment for the crime of burglary, the ownership of the building broken must be alleged. To support this contention, counsel for appellants cites these authorities: 2 Bish.Crim.Proc. § 137; 1 Bish.Crim.Proc.§§ 566, 573; Com. v. Perris, 108 Mass. 1, 3; State v. Brant, 14 Iowa, 180; Pells v. State, 20 Fla. 774; Beall v State, 53 Ala. 460; State v. Fockler, 22 Kan. 542; State v. Morrissey, 22 Iowa, 158; Wallace v. People, 63 Ill. 451; and Jackson v. State, 55 Wis. 589, 13 N.W. 448. There is no doubt of the common-law rule, and that these authorities correctly declare it, and, if the principle is unaffected by our Code of Criminal Procedure, the judgment appealed from is erroneous, and must be reversed. Section 1269, Hill's Code, gives a general form of indictment, which may be readily varied by ...