chusetts, it is not a felony to break and enter a dwelling-house with intent to cut off an ear of a person.' In Ohio, under the statute punishing the breaking and entering a mansion house in the night season, in which any person shall reside or dwell, and committing, or attempting to commit, any personal violence, or abuse, the intent with which the party enters forms no ingredient of the offense. The sole question is, did the defendant commit, or attempt to commit, any personal abuse or violence. One who breaks and enters a building and takes therefrom an implement merely for use in breaking into another building near by, cannot be convicted of burglary with intent to steal from the first building. There can be no larceny without the intention of permanent appropriation, and that is a question for the jury. Under an indictment for breaking and entering a smokehouse and stealing meat, the character of the intent will not be changed by the fact that the prisoner previously went into the smokehouse on the business of the mistress of the house, and while there, dropped the meat between the ceiling, so that it could be taken out by prying up one of the weather boards; nor will it change the character of the breaking and entering so as to make the offense a mere larceny instead of burglary. When on the trial of an indictment for breaking and entering a dwelling in the night with intent to commit larceny, it is proved that the defendant was at the time in such a state of intoxication that he entered without any intent to commit the crime, he cannot be convicted."

340. Who is a principal offender. A felony may be committed through the instrumentality of others, though the principal be not present. But this is where the agent is an innocent party. When the person employed is guilty, he is the principal, and his employer but an accessory."

1 Com. v. Newell, 7 Mass. 245.

Forsythe v. State, 6 Ohio 20.

3 Wilson v. State, 18 Tex. App. 270; 51 Am. Rep. 309.

4 Fisher v. State, 43 Ala. 17.

State v. Bell, 29 Iowa 316.

Wixson v. People, 5 Parker, 119.

But where two combine to commit a burglary, and one breaks into the house and obtains the property while the other waits outside, both are guilty of breaking and entering.' And where an essential part of the plan of a burglary was that one of the parties should entice the owner a mile away from the building, and keep him there while the burglary was effected, it was held that the one so doing, was constructively present at the burglary, and might be indicted as a principal.'

§ 341. Construction of statutes; jurisdiction.-In New York burglaries may be tried out of their proper counties in certain special cases, that is, where the goods burglariously taken are carried into another county by the offenders; but that is by positive law, and not because the burglary was actually committed in the county where the indictment is found, or in judgment of law is considered to have been committed there. The fact must therefore be set out which brings the case. within the statute. But in the case of an indictment for a simple larceny found in a county into which the thief has carried the property stolen in another county, the law adjudges that the offense was in truth committed there, and hence there is no occasion for a statement in the pleading of what occurred in the other county.' The provision (2 Rev. Stat. 727, § 50), declaring that "a person committing a burglary and larceny in one county and carrying the stolen property into another county, may be indicted, tried and convicted for the burglary in the latter county, as if the crime had been there committed," is within the legislative power and is valid. The offender may be indicted and tried in the Court of General Sessions of the country where he is found with the fruits of his crime.' The offense of burglary at common law is not affected by S. C. Gen. St. ch. 129, § 32, or by the S. C. act of March 22, 1878.'

1 People v. Boujet, 2 Parker, 11.

? Breese v. State, 12 Ohio, St. 146; 80 Am. Dec. 340.

3 Haskins v. People, 16 N. Y. 344.

4 Mack v. People, 82 N. Y. 235.

5 State v. Branham, 13 S. C. 389. The New Mexico general railroad act, ch. 1, tit. 8, § 8, provided that "any person who shall in the day or nighttime enter by force, or otherwise, any car of any corporation, formed under

CHAPTER XXXV.

INDICTMENT.

§ 342. Sufficiency, generally.

343. Averment of time of commission.

344. Averment of intent.

345. Describing the locus in quo.

346. Describing the stolen goods.

347. Averment of value.

348, Averment of ownership of locus in quo.

349. Averment of ownership of goods.

350. Charging two offenses, generally.

351. Charging larceny as well as burglary.

§ 342. Sufficiency, generally.— An indictment for burglary must allege an entry. One which charges that the defendant "broke into the storehouse of M. D.," etc., "with the intent to steal," is fatally defective, because it does not aver an entrance.' But burglary charged in the language of

this act, with intent to steal any valuable thing then and there being, shall be deemed guilty of burglary, and upon conviction thereof shall be punished as in other cases of burglary." This provision applied only to corporations created under this general act, but subsequently the legislature passed an act conferring upon all corporations organized before the passage of the general railroad law "all the powers, privileges and exemptions conferred upon corporations organized" under that act. Upon the theory that the "privileges" thus conferred would give to corporations thus formed before the passage of the general railway law the "privilege” of being protected from burglary in the means provided by the section of the general law quoted above, the defendants were indicted under section 8, ch. 1, tit. 8, of the general railroad act for burglarizing the cars of the N. M. & S. P. R. R. Co., a company organized before the general railroad statute was passed. Held, that that the word "privilege" as used in the second act, does not confer the right to prosecute any one for burglary under section 8 of the general railroad act, ch. 1, tit. 8, where the burglary was of cars owned by a company organized before the general act was passed; but that the defendants could be prosecuted under the Criminal Code of New Mexico. Territory v. Stokes; 2 New Mex. 161.

1 Pines v. State, 50 Ala. 153; State v. Whitby, 15 Kan. 402. An indictment charging defendant with stealing and carrying from a warehouse goods of the value of forty cents, without alleging a breaking into the warehouse, does not charge a felony, under Gen. St. Ky., c. 29, § 4, which provides that if any person shall break any warehouse, etc., with intent to

the statute is sufficiently charged.' And an indictment charging that the defendant "feloniously, willfully and burglariously did break and enter," is equivalent to charging in the language of the statute that he "willfully and maliciously and with force did break and enter." The word "maliciously " in the statute does not mean malice towards the owner of the house entered, but the intent from which follows the unlawful act; and the words "did break" imply force.' So, an allegation that the prisoner, in the night-time, entered feloniously, burglariously, and with force and arms, is substantially to say felonice et burglariter fregit.' In Iowa, an indictment which charges the breaking and entering with intent to commit a public offense is sufficient; it is not essential to its validity that it should charge in addition that such breaking and entering were "burglarious." In Kansas, where a defendant is charged with having willfully, forcibly, feloniously and burglariously broken and entered in the night-time a store of C. & S., such information is not fatally defective upon a motion to quash, because it fails to describe more specifically the manner of breaking and entering the store." In Kentucky, an indictment which alleges that defendant willfully, feloniously, and maliciously broke into the depot belonging to and in the possession of the L. & N. R. Co., with intent to steal," is not vitiated by the omission of the word "forcibly." In Michigan, an information under Comp. L., § 7561, for an attempt to commit burglary by one who was armed, must allege that there was some one lawfully in the dwelling-house which he attempted to enter, or the alle

66

steal, or shall feloniously take therefrom goods, etc., of value, he shall be confined in the penitentiary, etc.— Webb v. Commonwealth, 87 Ky. 129. 1 People v. Murray, 67 Cal. 103.

1

Shotwell v. State, 43 Ark. 345.

amended

People v. Long, 43 Cal. 444. Under Cal. Code, §§ 460, 461, 1876, making burglary in the day-time in the second degree, the indictment should charge burglary generally, and leave the degree to be determined by the verdict if the plea is not guilty, and by the court if the plea is guilty. People v. Jefferson, 52 Cal. 452.

4 State v. Short, 54 Iowa 392.

State v. McAnulty, 26 Kan. 533.

• Cunningham v. Commonwealth, 13 S. W. Rep. 104.

gation that defendant was armed is mere surplusage, and conviction can only be had for the common-law offense of burglary.' In Missouri, an indictment for house-breaking, under the statute, must allege the manner of the breaking, in order to show the exact offense intended to be charged. In New Hampshire, the offense of entering a house in the night, without breaking, is included in an indictment for breaking and entering. In New York, an indictment should allege the manner in which the offense was committed, the offense being by statute divided into degrees, the punishment for which varies with the circumstances under which the act was done." In North Carolina, in an indictment for an attempt to commit burglary, some overt acts of the accused, which in the ordinary course of things would result in the commission of the crime, must be alleged and proved. In Texas, 66 breaking," in an indictment for burglary, necessarily includes force. An entrance may be made by force and not by breaking, but not by breaking without force. To allege a breaking" sufficiently shows use of force. But under Penal Code, art. 706, providing that the entry into a house, within art. 704, "includes every kind of entry but one made by the free consent of the occupant,”. some one of the statutory modes of entry, as well as the fact of entry, must be alleged and proved in order to constitute the offense of

1 Harris v. People, 44 Mich. 305.

2 Connor v. State, 14 Mo. 561.

3 State v. Moore, 12 N. H. 42.

4 People v Van Gaasbeck, 9 Abb. Pr. N. S. 328.

State v. Calvin, 90 N. C 717.

• Matthews v. State, 36 Tex. 675. An indictment alleged that B. "did unlawfully. feloniously, and burglariously

* *

*

break and a window

pane out of the window, and did hoist the window and enter the dwellinghouse of R., there situate, with intent then and there unlawfully, feloniously, and burglariously, and against the will and consent of I., her, the said I., to ravish, and carnally know," etc. Held: 1. That the words "and a window pane out of the window," might properly be rejected as surplusage. 2. That the intent was sufficiently charged.—Burke v. State, 5 Tex. App. 74.