
    The State of Ohio v. Henry Beal.
    Upon the trial of an indictment for burglary, the evidence tended to show that the accused, in the night, broke and entered a warehouse with intent to steal money supposed to be in a safe therein, belonging to the owner of the building, which safe, however, was not used as a place for the deposit of money. The court charged the jury, that if the accused broke and entered the building with the intent to break into the safe and steal money supposed to be therein, and the safe was not used as a place for the deposit of money, and there was none therein at the time, he was not guilty.
    
      Held, that the instruction was erroneous.
    Exceptions by the state to instructions by the Court of Common Pleas of Wayne County to the jury.
    The defendant, Henry Beal, was indicted for burglary.
    The indictment charged, that the defendant, in the night season of the 31st day of October, 18YY, “into a certain warehouse of William Houts, situate in Wayne county, did willfully, maliciously, burglariously and forcibly break and enter, with intent then and there feloniously and burglariously to steal take and carry away, the personal goods, chattels and property of the said William Houts, then and there being,” &c.
    Evidence was offered tending to show that the defendant, in the night season of the day named, broke and entered the warehouse of Ilonts with intent to steal moneys which he supposed to be in a safe belonging to Houts in the warehouse, and which he attempted to open; but evidence being given tending to show that there were no moneys in the safe, and that Houts did not use the same as a place for the deposit of money, the court instructed the jury as follows:
    “ If the jury find that the defendant, Henry Beal, broke and entered the warehouse of the prosecuting witness, William Houts, with the intent to. break open the safe of the said William Houts, in said warehouse, and intended to steal money of said William Ilonts, which he supposed to be in the safe, and the jury further find that said Houts did not use said safe as a place for the deposit of money, and that no money was actually in the same at the time the defendant so broke and entered said warehouse and attempted to break open said safe, they should acquit the defendant.”
    • The jury having acquitted the defendant, the prosecuting attorney alleges that the above recited instruction was erroneous.
    
      Edward S. Dowell, prosecuting attorney, for the state:
    The building alleged to have been burglariously broken and entered in this case was a warehouse, and the statute of Ohio reads, “ Whoever in the night season maliciously and forcibly breaks and enters any warehouse with intent to commit a felony or with intent to steal property of any value shall be imprisoned,” &c. Ohio Criminal Code, 12.
    If the defendant broke and entered the said warehouse, with the intent of stealing from a s^afe therein certain moneys which he supposed to be in such safe, belonging to said Ilouts, he was guilty under the statute of the crime of' burglary, whether there was any money in said safe or not. Commonwealth v. Jacobs, 9 Allen, 274; Hamilton v. State, 36 Ind. 280; 1. Bishop Crim. Law, §§ 427, 674, 676, 677; 2 Wharton Crim. Law, § 2697.
   Boynton, C. J.

The judge presiding at the trial seems to have been of the opinion, that the averment of an intent to steal the personal effects or property of the owner of the building broken into, is not sustained, unless property belonging to such owner and which the accused intended to steal, was found within the building. The instruction, in effect, directed the acquittal of the defendant if no money was kept in the safe, although he believed money would there be found, and the breaking and entry were with the intent to steal it. In this we think the court erred. • Burglary, under the statute, involves the ingredients of breaking and entering the building, in the night, forcibly and maliciously, with intent to commit a felony, or with intent to steal property of some value. It differs but slightly from burglary at common law. 2 East P. C. 484. The offense is complete when the facts entering into the above definition exist, whether the intent is executed or not. It has been repeatedly held, and the rule is well established, that in an indictment for burglary, it is not necessary in alleging the intent to steal, to specify to whom the goods intended to be stolen belong. It was not required at common law, nor is it under the statute. Queen v. Nichols, 1 Cox C. C. 218 ; Reg. v. Lawes, 1 C. & P. 62; 2 Russ. on Cr. (9 Am. ed.) 44.

The breaking and entering with the felonious intent constitute the offense. It is true, that in the Queen v. Jenks, the trial of which is reported in 2 Leach, 4 ed. 774, the court held, upon review, that where a specific intent is laid to steal the goods of one, not the owner of the building, the intent must be proved as laid. 2 East P. C. 514; 2 Russ, on Cr. 44. The doctrine of this case has not met with universal approval, its correctness being denied by Mr. Bishop in 2 Bish. on Cr. Law, § 114, where it is asserted that if it appear that there were a breaking and entry with intent to steal, a conviction should follow, although the specific intent charged is not established by the proof. Whether the rule in Jenks’ case is correct or not, we need not stop to inquire, as the present case seems clearly distinguishable from it. The question here is, whether •the act of breaking and entering with intent to steal money from the safe of the owner of both the building and safe, in the belief that money was there, is reduced to a mere trespass from the circumstance that, contrary to the expectation of the defendant, no money was there found, coupled with the fact that the safe was not used as a place for its deposit. We think it was not. The offense was complete whether money was there deposited or not. The breaking and entering were with intent to steal the property of Houts. This brings the case within both the words and object of the statute. The public security was as much disturbed by the act committed, as if money had been actually found. The offense is one against the security of property, and the failure to execute the intent was the result only of an unforeseen and unexpected circum■stance. Where a statute makes an assault upon a person with intent to steal from his pocket, a criminal offense, it is no answer to an indictment charging 'such offense that nothing was found in the pocket. It has been repeatedly held, that where the hand is thrust into the pocket with intent to steal what may there be found, the offense is complete whether anything be found or not. State v. Wilson, 30 Conn., 500 ; Hamilton v. State, 36 Ind., 280 ; Commonwealth v. Jacobs, 9 Allen, 274; 1 Bish. Cr. Law, § 743, et seq.

A distinction seems to prevail, in the English cases, between an attempt to commit a felony and an act done with intent to commit it. In The Queen v. Goodall, 2 Cox C. C. 41, the accused was indicted for using an instrument upon the body of Catharine Snowden with intent to procure a miscarriage. The statute declared that whosoever, with intent to procure the miscarriage of any woman, shall . . . unlawfully use any instrument, &e., . . shall be guilty of felony. It appeared from the evidence that the instrument was used with the intent laid in the indictment; but the medical witnesses stated, from the result of a post mortem examination, that Catharine Snowden was not pregnant at the time the instrument was used. Upon reservation of the question for the consideration of the judges, it was held immaterial whether the woman was, in fact, pregnant or not. In McPherson’s case, it was held that, where a statute makes it an offense to attempt to commit a felony, the attempt must be to do that which, if successful, would have constituted or resulted in a felony, and consequently, that, where the attempt-charged was to steal certain goods from a dwelling-house, no conviction could be had, it appearing that the goods had been previously stolen by some one else. Dearsley & Bell, 197. Cookburn, C. J., in delivering the 0]únion, however, remarked, that “ attempting to commit a felony is clearly distinguishable from intending to commit it.”

That this distinction is not supported by the American cases is asserted by both Mr. Bishop (1 Bishop Cr. Law, § 742) and by Mr. Wharton (1 Wharton Cr. Law, § 18G). See Holmes on Common Law, 09. In the present case it is not necessary to examine the ground on which the distinction is said to rest. We are of the opinion that the breaking and entering the warehouse of the prosecutor, as alleged, with intent to steal money supposed to be in the safe within the building, was burglary, notwithstanding the fact that no money was there found or kept. The failure to accomplish the result contemplated was wholly independent of the defendant’s will, and did not in the least mitigate the turpitude of the offense.

The statute was designed to afford security against a breaking and entering with intent to steal, and when the act and intent concur, the statute is none the less violated, because through some unforeseen circumstance the criminal enterprise proves unsuccessful in its result.

Exceptions sustained.  