Winslow v. State

• Decision Date: 10 April 1889
• Citation: 41 N.W. 1116,26 Neb. 308
• Parties: WINSLOW v. STATE.
• Court: Nebraska Supreme Court

26 Neb. 308

41 N.W. 1116

WINSLOW

v.STATE.

Supreme Court of Nebraska.

April 10, 1889.

Syllabus by the Court.

1. In an indictment for burglary it is necessary that the name of the owner of the building broken into should be given, and for this purpose the person in the visible occupancy and control of the premises at the time of the burglary may be set out as the owner, whether he be the owner of the title, or a tenant.

2. In such case it is also necessary that the indictment contain an averment that the breaking was with intent to steal property within the building.

Error to district court, Johnson county; BROADY, Judge.Daniel F. Osgood, for plaintiff in error.

The Attorney General, for the State.

REESE, C. J.

Plaintiff in error was convicted of the crime of burglary. He brings the cause into this court for review by proceedings in error. His principal objection is to the indictment which was returned by the grand jury, the charging part of which is that he “did on the 5th day of February, in the year of our Lord one thousand eight hundred and eighty-seven, in the county of Johnson and state of Nebraska aforesaid, then and there feloniously and burglariously, in the night season, willfully, maliciously, and forcibly break into and enter into a storehouse occupied by one Robert M. Frost, in the city of Tecumseh, with the intent to steal property of value of said Robert M. Frost, contrary to the form of the statute,” etc. It is contended (1) that the indictment contained no averment as to the ownership of the building broken into; (2) that there was no description of the offense intended to be committed; and (3) that the property which it was averred that plaintiff intended to steal was not alleged to have been in the building referred to at the time of the alleged breaking.

Section 48 of the Criminal Code provides that “if any person shall, in the night season, willfully, maliciously, and forcibly break and enter into any dwelling-house, kitchen, smoke-house, shop, office, store-house, mill, pottery, factory, water-craft, school-house, church, or meeting-house, barn or stable, warehouse, malt-house, still-house, railroad car factory, station-house, or railroad car, with intent to kill, rob, commit a rape, or with intent to steal property of any value, or commit any felony, every person so offending shall be deemed guilty of burglary, and shall be imprisoned in the penitentiary not more than ten, nor less than one year.” It is conceded by the deputy attorney general that in an indictment or information for burglary the name of the owner of the building must be stated with reasonable certainty; and such is the law of the case. But many of the distinctions of the common law, as to the ownership of property with reference to which burglary may be committed have been dispensed with, and it is not necessary to allege the title or character of ownership. The actual occupant, lawfully in possession of the building, and having the exclusive use and control of the premises, is the proper party in whom to allege ownership. Ownership as against the burglar means any possession which is rightful. See Maxw. Crim. Proc. 104, 105, and cases cited in note. It will be observed that the indictment in this case charges that the store-house was occupied by one Robert M. Frost; but there is no allegation of his ownership. It was perhaps a matter of doubt in the mind of the pleader as to whether the occupancy of Frost was sufficient to justify the allegation of ownership, and therefore he preferred to state the facts as they existed. This, however, does not meet the requirements of the settled rule of criminal pleading. In cases of this kind, there must be an allegation of ownership, (Wilson, Ohio Crim. Law,...