of the alleged owner of the stolen goods, and inserting the words "of some person unknown." Where one accused of simple larceny consents in open court, before the jury are sworn, that the charge may be amended so as to charge larceny from the house, and it is discovered after the jury are sworn that the property is laid in defendant, he cannot object to an amendment so as to lay the property in the prosecutor, as he had agreed to allow a good accusation of larceny from the house."

§ 106. Averment of possession whence taken.-In Iowa, an indictment for larceny of a trunk taken from a baggage master, may properly lay the possession in either the owner or the bailee; and where the owner is alleged to be unknown an allegation that the goods were taken from the possession of the railroad company is sufficient, as showing special property in the company, to designate the person injured by the crime.* In Missouri, in an indictment for stealing corn, an allegation that the owner of the land from which the corn was taken was unknown to the grand jury, but that it was in the possession of one A. is sufficient." In Texas, an indictment charging theft, must allege the possession from which the stolen property was taken; . e. that the property stolen, was taken from the possession of the owner, or from that of some person holding the same for him;' and the evidence must substantially correspond with the allegation in this respect. Such an indictment is fatally defective when it fails to charge that the property stolen was taken from the possession of any one.* An indictment for larceny from a house must state the name of the owner or occupant of the house." An allegation that

1 Commonwealth v. O'Brien, 2 Brews. 566.

2 Barlow v. State, 77 Ga. 448.

3 State v. Mullen, 30 Iowa, 203.

4 State v. McIntire, 59 Iowa 267.

State v. Schatz, 71 Mo. 502.

8

Garcia v. State, 26 Tex. 209; 82 Am. Dec. 605; Watts v. State, 6 Tex. App. 263.

1 Gadson v. State, 36 Tex. 350.

8 Case v. State, 12 Tex. App. 228.

Garner v. State, 36 Tex. 693.

10 Lankin v. State, 42 Tex. 415. An indictment which alleges that the de

defendant "did fraudulently take and steal a horse from the possession of A.," is not an allegation of ownership.' In Virginia, an early case holds that an indictment for larceny at common law need not allege that the property was stolen from the possession of any person.'

CHAPTER XIV.

OTHER MATERIAL AVERMENTS.

§ 107. Time.

108. Place.

109. Value; necessity of the averment.

110. Value; sufficiency of the averment.

111. Felonious intent; necessity of the averment.

112. Its sufficiency.

113. Use of the word "feloniously."

107. Time. It is not material that the information should state the exact day of the commission of the offense, provided the proof shows that it was committed within the

fendant did "feloniously take, steal, and carry away from the smoke-house, and from the possession of the owner thereof, four middlings of bacon, of the value of twenty-five dollars, the property of S. S.," sufficiently charges the taking from a house, and from the possession of the owner.-Irvin v. State, 37 Tex. 412.

Maddox v. State, 14 Tex. App. 447. An indictment for the theft of a horse, which alleges that the horse was taken "from the possession, H.,” omitting the word "of" before "H.," is fatally defective.-Riley v. State, 27 Tex. App 606.

Thompson v. Com., 2 Va. Cas. 135. The first count of an indicment charged the defendant with stealing a slave of the goods and chattels of A. B. from the possession of A. B. The second count was like the first, excepting that it did not allege that the slave was taken from the possession of any one, and neither count charged that the offense was committed against the form of the statute. It appeared that the slave was at the time a runaway. Held, that the defendant must be discharged, the slave not being in the actual possession of A. B., and the indictment not charging an offense at common law.-Com. v. Hays, 1 Va. Cas. 122.

statutory period of limitation.' When no day is specified on which the offense is alleged to have been committed, but simply that the defendant "did feloniously take, steal and carry away," this defect is cured by verdict.' A complaint charging that the offense "has been committed," sufficiently indicates that it was prior to the complaint. But an indictment found in F. county charging the accused with having committed a larceny in C. county, May 15, "1878," and with having brought the stolen goods into F. county, May 16, "1876," is insufficient on motion to quash. So also, upon an affidavit averring a larceny to have been committed "on or about the first day of September, A. D. 1877," an information alleging that the offense was committed "on the first day of August," constitutes a fatal variance." But an immaterial and impossible date in an indictment may be corrected at any time; particularly when the date is not of the essence of the offense charged. An indictment charging a larceny two years before the return of the indictment, but that defendant had concealed the fact that a crime had been committed till within two years, is good; otherwise, if it charged that defendant's guilt had been concealed.' In New York, under 2 Rev. Stat. 649, § 63, and Laws 1862, ch. 374, § 2, an indictment for grand larceny in stealing money from the person, need not aver that it was stolen in the night time; and a conviction may be sustained if property of any value is taken.

1 State v. Kane, 33 La. An. 1269. An indictment showed on its face that the larceny charged was committed more than eighteen months before indictment found. There were no allegations bringing the case within the exceptions specified in the statute. The value of the property was not stated, but on the trial it appeared that the offense was petit larceny, to which offense the statute of limitations applies. Held, that the indictment was bad.-Church v. People, 10 Ill. App. 222.

2 Perkins v. State, 8 Baxt. 559.

3 Bell v. State, 75 Ala. 25.

Hutchinson v. State, 62 Ind. 556.

Hoerr v. State, 4 Tex. App. 75. Compare Williamson v. State, 5 Tex. App. 485.

State v. Pierre, 39 La. An. 915.

State v. Hoke, 84 Ind. 137.

8 Fallon v. People, 2 Abb. App. Dec. 83.

$108. Place. In an indictment for theft from a house, the house should be described by naming its owner or occupant, or by some other description by which it could be identified.' An indictment which charges the crime to have been committed "in a dwelling, namely, the Riverside Hotel," sufficiently charges it to have been committed in a house, since the words in an indictment are to be construed according to their usual acceptation in common language. Where an in

dictment for larceny in a building does not properly describe the building, the conviction will, notwithstanding, be good for simple larceny. The Massachusetts statute does not contain the word "store," and prescribes no punishment for larceny in a store. Hence an indictment for larceny "in a building called and being a shop" is sustained by proof of a larceny in a building kept and used for the sale of goods and called a "store."

§ 109. Value; necessity of the averment.- Larceny being a graded crime, an indictment which fails to aver the value of the thing alleged to have been stolen is defective, unless the statute makes the stealing of the particular thing a felony, without reference to its value. The failure to allege value is ground for arrest of judgment; and the omission cannot be cured by amendment. It is not enough in such a case that the value is alleged in the affidavit upon which the indictment was founded. Thus an indictment is insufficient which fails to allege the value of the money stolen, or the country of which the money is the current coin. So an indictment for stealing a letter from the post-office, containing an article of value,

7

1 Lankin v. State, 42 Tex. 415.

* State v. O'Neil, (Or.) 27 Pac. Rep. 1038.

3 Com. v. Hathaway, 14 Gray, 392; State v. Savage, 32 Me. 583.

4 Com. v. Riggs, 14 Gray, 376; 77 Am. Dec. 333.

'Sheppard v. State, 42 Ala. 531.

• Davis v. State, 40 Ga. 229.

State v. Goodrich, 46 N. H. 186; Sheppard v. State, 42 Ala. 531; Com. v. Smith, 1 Mass. 245; Morgan v. State, 13 Fla. 671.

* Pittman v. State, 14 Tex. App. 576.

'Boyle v. State, 37 Tex. 359.

Contra, see State v. King, 37 La. An. 91.

And an indict

must describe the article and state its value.' ment for the larceny of promissory notes must allege the value of the notes. Describing them as being of certain amounts is not sufficient.' Where, however, there is but one punishment, whatever the value of the stolen property, its value need not be alleged in the indictment. Thus, an indictment for the larceny of a deed need not mention the grantee's name, nor need it allege the deed to be of value.*

3

The statutes of many States make the stealing of certain kinds of property grand larceny irrespective of value; in such cases the allegation is unnecessary. Such statutes apply to the theft of horses, mares, geldings, etc.,' cattle and hogs," an outstanding crop,' a coupon or other railroad ticket or pass," and bank notes.' And the same rule applies to larceny from the person, where the statute makes it punishable as grand larceny, whatever the value of the property taken."

110. Sufficiency of the averment of value. The value of stolen property is the value at the place and time where and when stolen, not its value at some other place." In an indictment for the larceny of several articles it is sufficient to state only the collective value of the property, and proof of the aggregate value may be received under it." Thus an indictment for the larceny of bank bills which alleges their ag

1U. S. v. Burroughs, 3 McLean 405.

Wilson v. State, 1 Port. 118.

Shaw v. State, 23 Tex. App. 493.

4 State v. Hall, 85 Mo. 669.

5 Maynard v. State, 46 Ala. 85; Hoge v. People, 117 Ill. 35.

"Adams v. State, 60 Ala. 52; Walker v. State, 50 Ark. 532; Territory v. Pendry, 9 Mont. 67. In Missouri, however, the stealing of a hog being no longer grand larceny irrespective of value, (Rev. Stat., 1879, § 1307,) an indictment for stealing one should allege either that it was of the value of $30, or more, or that it was under that value -State v. Pedigo, 71 Mo. 443. 'Gregg v. State, 53 Ala. 116.

8 McDaniels v. People, 118 Ill. 301.

Adams v. Commonwealth, 23 Gratt. 949.

10 People v. Fallon, 6 Parker 256; affi'd 1 N. Y. App Dec. 83; Com. v. McDonald, 5 Cush. 365; Bennett v. State, 16 Tex. App. 236.

11 People v. Cole, 54 Mich 238.

12 State v. Beatty, 90 Mo. 143; Jackson v. State, 69 Ala. 249; State v. Hart, 29 Iowa, 268.