
    CASE 18 — INDICTMENT FOR BURGLARY
    JUNE 19.
    Charles Olive, alias Alice, vs. Commonwealth.
    APPEAL PROM JEFFERSON CIRCUIT COURT.
    1. To make out the offense, of burglary, it is not necessary to prove that property was actually taken, stolen, &e.; it is sufficient if the house was feloniously broken and entered with the intention of so doing.
    2. In an indictment for burglary, the actual commission of the ulterior felony being alleged as a substitute for the usual averment of the intent to commit the particular felony, that did not vitiate the indictment; for the commission of the felony, where one is actually committed, is the very best evidence of the intent to commit it. (2 Bishoprs Grim. Proc., sec. 115.)
    3. The indictment did not charge that the storehouse was “burglariously” broken and entered. Objection to it on that account is fully answered by subsection 3, section 128, of the Criminal Code. The court could certainly pronounce judgment, on conviction, according to the right of the ease, without the insertion of the omitted word.
    4. It is not necessary to give the number and street in the description of the house alleged to have been broken, &c.
    5. That the owner’s name was alleged, to bN^- Domick instead of Domeck, as the owner himself spells it. Objection on that account is removed by section 127, Criminal Gode.
    
    J. R. Duruy, For Appellant,
    CITED—
    
      Criminal Code, sec. 126.
    
      Revised Statutes, 1 Stanton, sec. 1, p. 382, sec. 6, p. 383.
    2 Wharton’s Criminal Law, pp. 1607,1610,1820,1821.
    1 Wharton’s Criminal Law, pp. 401, 402, 260, 259, 597.
    2 Bishop on Grim. Proc., secs. 101, 102, 103, 104, 109.
    2 Archbold’s Prac. and Plead., 329, 337, 338, 339.
    
      John Rodman, Attorney General, For Appellee,
    CITED—
    
      Criminal Code, sec. 334.
    1 Met., 6 ; Tipper vs. Commonwealth.
    
    17 B. Mon., 408 ; Comely vs. Commonwealth.
    
   JUDGE PETERS

delivered the opixiox of the court:

We feel constrained, after a careful reading and consideration of the able argument presented by the attorneji for the appellant, recommended not more by the learning and research displayed than the laudable zeal manifested for his unhappy client, to dissent from his conclusions.

First. It is contended, on behalf of the appellant, that two distinct offenses are charged in the same count in the indictment, there being but one count, and that the judgment, for that reason, should have been arrested.

If the indictment had charged, after the formal parts, that the defendant feloniously and burglariously broke and entered the storehouse of said A. Domeck in the night time, “with the intent” the goods and chattels of him, the said A. Domeck (describing them), in his said, storehouse then and there being, to steal, take, and carry away, it would have fully met the approved form, as containing all the requisites of an indictment, according to the common law definition of the offense, and we have no statute defining it. To make out the offense, it is not necessary to prove that goods, chattels, &c., were actually stolen, taken, and carried away; it is sufficient if the storehouse was feloniously broken and entered with the intention of doing so. But in this case more is charged in the indictment than was necessary, and the attorney for the Commonwealth, instead of stating the intent, has alleged the actual commission of the ulterior felony in the house broken and entered, as a substitute for the usual averment of the intent to commit the particular felony; which certainly should not vitiate the indictment; for the commission of the felony, where one is actually committed, is the very best evidence of the intent to commit it; and this accords with the general doctrine on the question. (2 B. Crim. Proc., sec. 115).

The second objection is, that the indictment fails to charge that the storehouse was “ burglariously ” broken and entered, the word italicized being a word of art, and technically necessary in charging the offense. This objection is fully answered by subsection 3, section 128, Criminal Code, which provides that the indictment is sufficient, if it can be understood therefrom that the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case. The court can certainly do this without the insertion of the omitted word.

It was formerly held, that, in an indictment for burglary, the indictment should not . only state that the offense was committed in the night time, but it must state the particular hour of the night. But the better opinion now seems to be, that it is sufficient, to aver that it was committed in the night time (2 Whar. Amer. Crim. Law, sec. 1612), and that will certainly be sufficient after verdict.

The description of the house seems to be sufficiently certain. It is described in the indictment as the house of A. Domick. It cannot be necessary to give the street, number, &c. It is sufficiently described for all practical purposes, and would bar another prosecution for the same offense; consequently, that defect, if it be one, cannot prejudice the substantial rights of the defendant on the merits ; and, therefore, under section 120, Criminal Code, cannot be available for a reversal.

The last objection which will be noticed relates to the difference in the way the name of the owner pf the goods is spelled in the indictment and the way he himself spells it. That difference is slight indeed — using “i” as the fourth letter in the surname, instead of “ e”— making but little, if any difference, in the sound, scarcely perceptible, and altogether too technical to be available. But if it were otherwise, the objection is removed by section 127, Criminal Code, which provides, that where an offense involves the commission, or an attempt to commit an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material.

We perceive no error prejudicial to appellant in the proceedings; wherefore, the judgment must be affirmed.  