
    Case 9 —INDICTMENT
    March 19.
    Arthur v. Commonwealth.
    APPEAL FROM FRANKLIN CIRCUIT COURT.
    1.Housebreaking. — An indictment under section 1162 of the Kentucky Statutes, which charges the defendant simply with breaking and entering a dwelling-house with intent to steal, without alleging that there was anything stolen and taken therefrom, does not charge a felony within the meaning of that section. It is an essential part of the crime designated in that section, that something of value should be taken away from the house.
    W. H. JULIAN and HUGH RODMAN for appellant.
    1. If the facts charged in the indictment' do not constitute a felony under our statutes, the motion in arrest of judgment should have been sustained, because at common law .house-breaking was only a misdemeanor. ((Mullins v. Commonwealth, 14 Ky. Law Rep.,' 569.)
    2. The facts charged in the indictment do not constitute a felony by virtue of section 1162, because it is not charged that anything of value was taken from the house.
    3. They do not constitute a felony under section 1164, because the provisions of that section do not apply to dwelling-houses.
   JUDGE LEWIS

DELIVERED THE OPINION OF THE COURT.

Appellant was indicted, tried and convicted of the crime of housebreaking, alleged to have been committed by his unlawfully and feloniously breaking and entering into a room occupied by Mrs. Kate Williams' as part of her dwelling house, with the felonious intent to steal therefrom property of value.

At the trial he moved the court to instruct the jury to acquit him; but his motion was overruled. He also made a motion in arrest of judgment, which was likewise overruled.

As there is no bill of evidence before this court, the only question to decide is whether the facts stated in the indictment constitute a public offense within the jurisdiction of the court.

The indictment was evidently found and appellant convicted under section 1162, Kentucky- Statutes, which we copy entire as follow's: “'If any person shall feloniously take out of or from any church, chapel or meeting-house* schoolhouse, courthouse or other public building, any goods or chattels or other thing of value belonging thereto, or shall rob aDy person in his dwelling house, or place, or in any booth or tent in a fair or market, he, his wdfe, children or servants or other person tken'bemgw'ithin,or shall feloniously break any dwelling house or any part thereof, or any' outhouse belonging to or used with any dwelling house, and ■feloniously take away anything of value, although the owner or any person may not be there, he shall be confined in the penitentiary not less than two nor more than ten years.”

It will be observed that to constitute a complete offense under that section there must be a felonious taking out of a church or other building of that class a thing of value, or robbery of a person in his dwelling house or other place of that class, or felonious breaking a dwelling house and feloniously taking awmy a thing of value; and that it does not make any difference what may have been the intent w’ith w’hich any of the places mentioned in that section w'ere entered, except there must be a felonious breaking of a dwelling house.

According to sections 1163 and 1164 entering any place mentioned therein with mere intent to steal therefrom a thing of value is a felony, though no overt act be done; and the fact that the statute in terms makes it a felony to enter places described in those two sections, whether anything be stolen therefrom or not, makes it plain, if it was not already so, that the legislature intended that, to constitute a felony under section 1162, there must be actually a felonious taking from a dwelling house a thing of value, without regard to the intent with which it was entered or even broken.

As, therefore, the indictment in this case charges simply a breaking and entering the dwelling house with intent to steal, without stating there was anything stolen and taken therefrom, the motion for an instruction to acquit ought to have been sustained; but, as that was not doné, the additional error was committed by the court in overruling the motion in arrest of judgment; for appellant was not guilty according to the statement in the indictment, ■ of a felony, hut only a trespass or breach of the peace, if guilty of any offense.

The judgment is reversed for further proceedings consistent with this opinion.  