
    Thomas Spencer v. The State of Ohio.
    In an indictment for burglary with intent to steal goods and chattels, it is not necessary to aver what specific goods were intended to be stolen.
    The term “goods and chattels” imports value, and it is not necessary, under the statute, to aver any certain value.
    On trial, proof of their value is not necessary.
    In an indictment for burglary, a description of the premises, as “the warehouse of W. M., at Scioto county,” is sufficient.
    This is a writ of error, to the common pleas of Scioto county, made returnable to the Supreme Court in bank.
    The plaintiff in error was indicted, tried, and convicted, at the October term of said court of common pleas, 1844, fir burglary, and sentenced to imprisonment in the penitentiary. The indictment contains two counts. On the second, however, the plaintiff was acquitted ; and the first, therefore, is only called in question. In this count, it is averred, “ that Thomas Spencer, late of the county of Scioto aforesaid, on July 1, A. D. 1844, about the hour of one o’clock, in the night season of the same day, with force and arms, at the ^county of Scioto aforesaid, the warehouse of one William Maddox, there situate, willfully, maliciously, forcibly, and burglariously, did break and enter, .with intent, the goods and chattels of Samuel Shipman, in the said warehouse, then and there being found, then and there willfully, maliciously, forcibly, and burglariously to steal, take, and carry away, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”
    This count, in the indictment, is fram ed upon section 14 of the act for the punishment of crimes and misdemeanors, which 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, warehouse,” etc., “with intent to kill, rob, commit a rape, or with intent to steal property of any value,” etc., “every person so offending shall be deemed guilty of burglary, and, upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, for not more than ten, nor less than three years.” Swan’s Stat. 232.
    After conviction, the counsel for the prisonor moved in arrest of judgment: 1. Because the count in question was uncertain, in this, that it did not specify the goods and chattels the prisoner intended to steal. 2. That the goods and chattels were not laid to be of any value. 3. That there was no local description of the premises.
    The overruling of this motion by the court of common pleas is assigned for error.
    The following bill of exceptions was also taken upon the trial:
    “ Thomas Spencer ads. The State of Ohio. Indictment for burglary, etc., in Scioto common pleas. Be it remembered, that, on the trial of this cause in the court of common pleas of Scioto county, in the State of Ohio, at the September term thereof, to wit, on October 1, 1844, the evidence having been submitted to the jury, and the arguments of counsel heard, and the prosecuting attorney on behalf of the state having adduced no proof that the *goods and chattels mentioned in said indictment were of any value, the defendant, by his counsel, requested the court to charge the jury that ‘ if the prosecution had failed to adduce any testimony as to the value of the property mentioned in the said indictment, the jury, in the absence of such evidence, could not find a verdict of guilty on either count,’ which instruction the court refused to give, but charged the jury that, no value being-laid in the first count, the prosecuting attorney was not required to introduce any testimony as to value under that count, and that, if they found the defendant guilty under the second count, it was incumbent upon the jury to find the value of the proporiy from evidence. To all which decisions of the court, in refusing to charge as requested, and in charging as above named, the defendant, by his counsel, excepted.”
    This charge is assigned for error.
    LeGrand Byington, for plaintiff in error:
    ' Two principal questions are raised upon this record, in both of which it is claimed the court of common pleas erred. I will consider them in the order in which they occurred at the trial. From the bill of exceptions, it appears that the prosecution in the court below adduced no evidence, upon the trial, that the goods and chattels which the defendant intended to steal were of any value whatever, and that the prisoner’s counsel asked the court to charge the jury that, in the absence of such testimony, they could not find a verdict of guilty upon either count; which instruction the court below refused to give. The statute defining burglary, enacts that if any person shall break and enter, etc., “with intent to steal proporty of any value,” etc. Swan’s Stat. 232, sec. 14. This statutory definition of the crime is necessary to bo set out, and proved as alleged, and if the state failed to prove that the property had some value, it failed to substantiate a material ingredient of the crime for which the prisoner was arraigned and upon his trial. Ifj, as a matter of fact, the goods and chattels wore of no value, then there was no crime, and the jury *were not bound to presume what the prosecution had not proved. Every necessary fact which goes to make up the crime, must be alleged and proved. The court of common pleas erred, therefore, in refusing to charge as requested, and the defendant was convicted when there was no evidence before the jury in relation to a material ingredient of the erimo.
    The next question raised, is upon the refusal of the court below to arrest the judgment upon the verdict. In making up this record, the clerk has neglected to incorporate the written reasons urued and filed for an arrest ’of the judgment, and we must, therefore, refer directly to the indictment for the exhibition of its insufficiency to support the judgment which was pronounced upon it. The second count was conceded, upon the trial, to be bad, but as the finding of the jury was upon the first count, it is only necessary to direct the attention of the court to that count upon which the verdict was found, and the judgment was pronounced.
    It is claimed that the first count in the indictment is bad, for various reasons:
    1. For uncertainty, in not specifying the goods and chattels which, it is alleged, the prisoner intended to steal. 7 Ohio, 204, pt. 1; Arch. Crim. L. 16-18, 22, 24.
    2. Because no value whatever is laid for the goods and chattels. 1 Mass. 245; Arch. Crim. L. 23.
    , 3. Because there is no local description of the premises. Seethe forms of indictments in Arch. Crim. L., and Chit. Crim. L.
    S. M. Tracy, for the state:
    In the statutory definition of the crime of burglary, with intent to steal property of any value, are the words “ of any value” operative words in the definition of this crime? The defendant in error insists that these words are inoperative. The legal effect of the language used in the statute is precisely the same as if the words had been “ with intent to-steal,” or, *“ with intent to steal property.” And the words “ with intent to steal” imply, ex vi termini, an intent to steal goods and chattels of value, with as great certainty as if alleged in those words. .
    I suggest that, prior to the reprint of the statutes of Ohio, in 1824, the language of the definition of this crime was “ with intent to steal;” and the form of the indictment was taken from the precedents in 3 Chit. Crim. L. 1101. In the reprint, perhaps, of 1824, the wording of the statute was varied to that now used in-the existing statute, and the forms of indictment have continued-to be taken from 3 Chit. Crim. L. and Davis’ Pr. 91. And assuredly if in our law, prior to 1824, the words “with intent to-steal” did imply goods and chattels of value, intrinsic value, as-distinguished from choses in action, and animals, fe.rce naturae, the-argument is conclusive that the change of words which the-statute has undergone has produced no change in substance or legal effect.
    The instructions asked of the court were relative to the evidence-of intent. Arch. Crim. PI. 170, gives the rules by which this-intent is made out in burglary. And the instructions of the-■court are fully sustained by the principle that the allegation indicates the proof.
   Wood, J.

If it be necessary to specify with certainty the particular goods and chattels which the burglar designs to steal, when the felonious breaking and entry is made with such guilty intention, but he is arrested in his progress before a larceny is actually committed, it appears to us the main object of this statute would be, in a great measure, defeated. Every material averment in an indictment must be proved. The law would not presume an intention to select one article in preference to another. Tho lone thief, who enters the well-filled storehouse or jeweler’s shop, can not reasonably be supposed to enter with the design to abstract the whole that either contains. It would be beyond the ordinary power of man to consummate or his skill to conceal; and it would be *only in case of voluntary confession, in which tho thief should announce the chattels he intended to take, that a conviction could be had, if larceny was not consummated, when the statute makes the breaking and entering, with the intention, tho crime. Upon what principle would it be presumed, if goods and chattels were specified, that they were tho ones intended to be taken, in preference to others? And how could this material fact, thus averred, be proved? Yery few, it is perfectly clear, would be the cases in which it could be done, though the general intent to steal might be perfectly manifest, from the time, manner, and other surrounding circumstances of the entry. We are, therefore, of opinion it is not necessary to the sufficiency of an indictment, under this statute, that it should describe any specific goods and chattels intended to be stolen.

Is it necessary that the indictment should aver the goods and chattels were of any value ? This is a question of more difficulty perhaps to determine, but we incline to the opinion the indictment for this offense is good without it. Though it is safer, as a general rule, to use the identical words of the statute which are descriptive of the offense, it is by no means necessary, provided others of similar import are employed. In the case at bar, the indictment avers the intent to steal the goods and chattels oí Ship-man ; but the statute punishes the intent to steal the property of any value of another, and no objection is taken to the indictment -on this account, and for the reason that goods and chattels are property. They are words, as employed, of the same meaning and import, and fully describe the crime. Nor is it necessary to aver the property was of any value, in the same words in the statute. If it appears, to a certain intent, from the language used, nothing ■more is required by the strictest rules in criminal pleading. It will be seen it is not the amount in value that constitutes an ingredient of the crime. It is of no importance whether it be large ■or small. If any value is attached to the thing intended to be stolen, the crime is complete. If the'tcrjn “property” was used, there would be perhaps more doubt; for a *man may have a bare property in dogs or animals, which are, by the rules of the common law, of no intrinsic value, and, though trespass will lie for taking them, they are, it is said, not the subject of larceny. But goods and chattels, ex vi termini, import value. It appears as manifestly, therefore, from this indictment, that the intent was to steal property of value as if the goods and chattels were laid to be of value in so many words; for nominal value is, in fact, understood as necessary to constitute goods and chattels.

The third objection is, that the warehouse is not properly described. Is it so? A good criminal pleader will never attempt more certainty than the law requires, for fear that, in the minuteness of detail, he may, by chance, misdescribe in some essential particular, which would be a fatal error. The warehouse is averred to be within the jurisdiction of the court, to wit, “at the county of Scioto,” and to be the warehouse of one William Maddox, and, we think, it was not necessary to specify the township, hamlet, or village, within which it was located, any more than the road or water-course by which it stood. The laws of this state appear to us to throw sufficient protection around the accused to guard vigilantly all his rights, and secure him a fair and impartial trial; and when this is done, the court ought not, by an unwise astuteness, in the' application of overstrained principles, and hair splitting technical objections, to cheat the law of its victim, and thereby give encouragement to villainy and crime.

A bill of exceptions was taken, during the trial, to the charge of the court. From this it appears that the evidence of the state being closed, the counsel for the plaintiff in error, among other things, asked the court to charge the jury that, as no evidence had been given, on the part of the state, to prove the goods and chattels laid in the indictment were of any value, tho plaintiff in error could not be convicted. This charge the court refused, but. did charge the jury that, as no value was laid in the first count, it was unnecessary for the state to prove any value, and that the-plaintiff in error might be convicted without such proof.

*This opinion of the court is also assigned for error. Ween lertain no doubt, however, the charge was correct, and for the same reasons, substantially, which wc have given for our opinion, that tho court of common pleas did not err in overruling the-motion in arrest of judgment, for the second cause assigned that, goods and chattels, from the natural signification of the words, import value, nominal, at least, and no proof was therefore required.

In larceny the rule is different. Yaluo must be laid, and value proved, that the jury may find it, and the court, by that means, know whether it is grand or petit, and apply tho grade of punishment the statute awards. It is not so in the case at bar. The judgment of the common pleas is affirmed, with costs. Judgment affirmed.  