manding the officer to diligently search a certain house for stolen goods, force their way into an adjoining dwelling house and search it, they will be jointly liable in damages for the injury done to the property and feelings of the occupant.' A search warrant is a sufficient justification, though the stolen goods are not found, even to the party at whose instance the writ issued, for an entry upon the suspected place, where the doors are found open and the entry is peaceable; whether it would be a justification where the doors are found closed and are broken down, not decided."

CHAPTER X.

FORMAL PARTS OF THE INDICTMENT.

§ 67. Commencement; caption; venue.

68. Naming the owner of the stolen property. 69. Conclusion.

§ 67. Commencement; caption; venue.-Ordinarily, the venue may be laid in any county in which the thief was possessed of the stolen goods; and it is not necessary to state in the indictment facts showing the commission of the larceny in another county. An indictment for bringing stolen prop

1 Larthet v. Forgay, 2 La. An 524; 46 Am. Dec. 554.

2 Chipman v. Bates, 15 Vt. 51.

3 State v. Lillard, 59 Iowa 479.

4 People v. Mellon, 40 Cal. 648 In Nevada, the indictment in such case must charge that the offense was committed in the forum county, or state that the bringing of the property into that county was felonious.-State v. Brown, 8 Nev, 208. In Mississippi, an indictment in the forum county should charge the larceny to have been committed in that county; otherwise it will be quashed for want of jurisdiction, the possession by the thief of the stolen goods being a larceny in every county into which he carries them.-Johnson v. State, 47 Miss. 671.

erty from another state must allege that the possession of the property in the state to which it was taken was felonious.'

§ 68. Naming the owner of the stolen property.— In Mississippi, it is necessary to set forth in an indictment for larceny, the entire christian as well as the surname of the owner of the goods alleged to have been stolen, if known.' If an indictment fails to state the first name of the owner, the reason for the omission should appear; or the indictment will be bad on demurrer. In some jurisdictions, however, such an omission is not fatal; and the objection comes too late when not made until after the trial and verdict, when a motion in arrest of judgment is filed. It has been held that the initials of the christian name of the owner of property stolen, in an indictment for larceny, are sufficient;' especially where it is shown that his name was ordinarily so written, and that he was as well known when so designated as when his christian name was given in full. So, also, an indictment is not defective in describing the party from whom the property was stolen by a name under which he was always known in his business, although he had another name." Therefore, to describe the

1State v. Levy, 3 Stew. 123. A commencement as follows: "The grand jury of the county of Decatur, in the name, and by the authority of the state of Iowa, accuse the defendant, D. P. Lillard, of the crime of larceny, committed as follows: The said defendant, D. P. Lillard, on the ninth day of September, 1879, in the county aforesaid, one mare," etc. Held, good as against the objection that it did not charge that any crime was committed in the state of Iowa -State v. Lillard, 59 Iowa 479. An indictment, after the words "state of Texas, county of Fayette," and the usual commencement, alleged that "James Cain, late of Travis county, aforesaid, with force and arms, in the county aforesaid, on, etc., did then and there feloniously steal, take, and carry away," etc. Held, bad for repugnancy and uncertainty in stating the venue.-Cain v. State, 18 Tex. 391.

2

Unger v. State, 42 Miss 642. So, also, in North Carolina, State v. Godet, 7 Ired 210.

'Brewer v. State, 18 Tex. App. 456.

4 Morningstar v. State, 52 Ala. 405.

People v. Goggins, 80 Cal. 229; People v. Pline, 61 Mich. 247.

* State v. Rook, 42 Kan. 419.

State v. Black, 31 Tex. 560.

8 Lyon v. State, 61 Ala. 224.

9 People v. Leong Quong, 60 Cal. 107. In the case last cited the appel

person whose property is affected by the crime as W. R., "the second of that name," is sufficient, when the individual referred to is generally known as W. R., Jr.; and proof that he is so known forms no variance.' An offense may be charged in different ways to prevent defect by variance or failure of proof. And an indictment consisting of several counts, is not bad because in each count a different person is named as the owner of the property. A total failure to state his name is fatally defective;' and in New Hampshire, the indictment in this respect cannot be amended.*

§ 69. Conclusion.—In many of the states all indictments for offenses punishable at common law must conclude "against the peace and dignity of the state;" in the federal courts the word "state" being replaced by "United States." But where an offense is created by statute, or the statute provides that a common law offense, committed under certain circumstances not necessarily embraced in the original offense, shall be punished differently, or where the statute changes the common law offense from a lower to a higher grade, the indictment must conclude "contrary to the form of the statute. But it is otherwise where the statute is only declaratory of an offense at common law, without changing the punishment; or where it mitigates the severity of the punishment. Therefore, as the stealing of a promissory note is not an offense at common law, an indictment for the larceny of it must conlants were convicted of grand larceny, for stealing a horse and wagon, the alleged property of one Sang Hop. On the trial of the case the owner of the property stolen testified that he had two names-a business name and a personal name. His personal name was Yup Chin and his business name Sang Hop; and that in all his business transactions and dealings, for years, he had been known by his business name only.

1 Com. v Parmenter, 101 Mass 211. Where the property stolen was alleged to belong to Richard G., and it was afterwards described as the property of of Robert G., it was held a mere clerical error, and not ground for objection. -Greeson v. State, 5 How. (Miss.) 33.

& Stone v State, 12 Tex. App. 193. But see Price v. State, 41 Tex. 215; State v. Schatz, 71 Mo. 502.

4 State v Lyon, 47 N. H 416. Part I 367; Peebles v. State, 55 Rap. Crim. Proc. § 84.

Contra, see State v. Christian, 30 La. An.
Miss. 434.

clude "contrary to the form of the statute.""1 An information for larceny ending with these words: "contrary to the form of the statute in such 'cash' made and provided," is not fatally defective."

CHAPTER XI.

CHARGING THE OFFENSE, GENERALLY.

70. Charging the taking.

71. Charging the asportation.

72. Negativing owner's consent.

73. Charging the offense in different ways.

74. Following the language of the statute.

§ 70. Charging the taking.-The indictment must show that the money or other valuable thing was actually obtained and taken by the defendant. It is not sufficient that the fact appears outside of the record. The word "steal" is not necessary, however; the words "feloniously took and carried away" being used, and the indictment being otherwise sufficient. And it need not expressly state that the conversion of the property taken was without authority of law, where it charges that the accused "did feloniously steal, take, and lead away "such property; the fact that the taking was contrary to law being clearly indicated. Grammatical errors, such as repeating "did" in the charging part, and placing the object after the auxiliary verb, will not vitiate the indict

91.

'People v. Cook, 2 Parker 12.

* State v. Given, 32 La. An. 782.

* Huntzinger v. Com., 97 Pa. St. 336.

• Damewood v. State, 1 How. (Miss.) 262; Engleman v. State, 2 Carter,

'State v. Lee Yan Yan, 10 Or. 365.

State v. Jones, 7 Nev. 408.

ment;' and the employment of the word "stal" for steal, is not cause to arrest the judgment.' The form for an indictment for theft prescribed by the Texas act of 1881, known as the "Common Sense Indictment Bill," charges no facts, acts or omissions constituting the offense of theft, and is consequently repugnant to the constitution of the state."

§ 71. Charging the asportation. An indictment for stealing a cow is sufficient which charges that the defendant "did steal, take and carry away" the cow, omitting the words "lead or drive away," and such indictment is not necessarily bad because it charges that defendant did "haul," instead of "carry away the stolen property." But an indictment which alleges that the defendant "feloniously did steal, take, and carry" the property, omitting the word "away" is insufficient, either as against the thief or the receiver. Contra, however, in Ohio, where the word "steal" implies a carrying away.'

§ 72. Negativing owner's consent. In Tennessee and Louisiana, an indictment charging the felonious stealing, taking and carrying away of the goods with the intent to deprive the owner thereof, is sufficient, although there is no allegation that the goods were taken without the owner's permission. In Texas, the indictment should allege the want of consent both of the owner of the property and the one having

1 Heath v. State, 101 Ind. 512.

2 Wills v. State, 4 Blackf. 457. An indictment charged that the accused “did then and there fraudulently and feloniously take, steal, and carry away from the ‘possion' of the owner, without the consent of the owner, and with intent," etc. Held, good on motion in arrest of judgment; otherwise on exceptions to the indictment.-State v Williamson, 43 Tex. 501. An indictment charging that one did steal, carry away, and kill one beef ox, etc. Held, not to be vitiated by the surplus words “and kill.”State v Johnson, 30 La, An. Part 1. 305.

3 Brown v. State, 13 Tex. App. 347; Flores v. State, Id. 337; Insall v. State, 14 Tex. App. 145; Williams v. State, 12 Tex. App. 395; Hodges v. State, 12 Tex. App 554; Young v. State, Id. 614.

People v. Strong, 46 Cal. 302.

'Spittorf v. State, 108 Ind. 171.

8

Com. v. Adams, 7 Gray, 43; Rountree v. State, 58 Ala. 381.

State v. Mann, 25 Ohio St 668. And see Walker v. State, 50 Ark. 532.

• Wedge v. State, 7 Lea 687; State v. Jones, 41 La. An. 784.