
    The State v. Thomas Smith.
    An indictment for “breaking and entering a store,” will justify a conviction under a statute against “ breaking and entering a shop."
    
      If the statement of the real facts in an indictment or information constitutes a substantial violation of the statute, it is the duty of the court to sustain the indictment or information
    APPEAL from the First District Court of New Orleans, McHenry, J.
    
      Isaac Johnson, Attorney General, for the State,
    contended: 1. The endorsement on the indictment. — What is an indictment 1 and what renders it a complete accusation 1 Arch. Cr. Pleading, 1, 63, 64. State v. Howell, 3d Ann. 52. The jury make the only necessary endorsement on the bill. Wharton’s ■ American Criminal Law, 128.
    In this case, the grand jury verified the accusation in the bill, and not the description of the offence on it. The prisoner’s counsel has misconceived the finding and the endorsement of the grand jury.
    2. Indictment charges defendant with breaking and entering the store of Ambrose Hortigues, No. 9 Front Levee, in the day time, with intent to steal. B. & C. 260, sec. 7th. Store is not, but shop is, mentioned in this section. It is contended, on the authority of 1st Mass. Rep. 517, that the indictment is bad, because it did not allege that the store was a building. But the words store and shop are used indiscriminately by the people, and both words are not used otherwise than as and for the name of a building. Store includes, but has, perhaps, a more extensive signification than shop; if so, the indictment is good. Archbold, 52.
    E. Abell, for defendant,
    contended: This is an appeal from the honorable First District Court of New Orleans. Accused begs leave to assign three legal grounds of error apparent on the face of the record in this case, either of which is deemed sufficient to reverse and set aside the verdict of the jury and judgment of the court below. 1. The court below erred in overruling the motion made in arrest of judgment. 2. The indictment is endorsed on its back “ a true bill for burglary,” and on its face it purports to be a bill for entering a store in the day time with an intent to steal. A fatal defect! Respectfully referred to 1 Chitty’s Criminal Law, 325; 4th Bacon’s Abridgment, 301, D. State v. Howell, 3d Ann. 52. 3. That the indictment charges the accused with entering a store in the day time with intent to steal, when, in fact, the statute does not mention store, and the indictment is silent as to whether it was a building or not. See B. & C. Digest, 261, art. 103; IstB. Com. 88; Commonwealth v. William M. Mona-gate, 1 Mass. Rep. 517.
   The judgment of the court (Rost, J. being absent,) was pronounced by

Preston, J.

The defendant is accused of breaking and entering a store in the day time with intent to steal. The grand jury endorsed on the back of the ’ indictment “a true bill,” dated and signed by the foreman. An erroneous memorandum on the back of the indictment, made probably by the clerk or prosecuting officer, indicating that the charge was for burglary is not, as contended, a part of the finding of the grand juiy. The authorities cited to show that the finding a true bill for a crime not charged would be vicious are not applicable to the case.

The indictment charges that the accused broke and entered a store with the feloneous intent; the statute makes it a crime to break and enter a shop, with such an intent. And the Supreme Court of Massachusetts, in the case of the Commonwealth v. Monagle, inclined to the opinion that the substitution of the word store in the indictment for the word shop in a similar statute was fatal on a motion in arrest of judgment. We think not. Mr. Webster, the best of lexicographers, defines a shop to be a building in which goods, wares, drugs, &c. are sold by retail; and states that, in the United States, shops for the sale of goods of any kind, by wholesale or retail, are often called stores. Indeed, ip this city, in common parlance, in speaking of going to places, known by no other names than stores, to purchase goods, we speak of going a shopping.

In the case of the United States v. Bachelder, 2d Gallison’s Rep. 18, it was held by Judge Story, that if the offence prohibited by statute was set forth with substantial accuracy in the indictment, it was sufficient, and that it was not necessary to follow the exact wording of the statute.

It is the duty of a prosecuting officer to state the precise facts with which he charges the accused, and, in doing so, to use the words of the statute if possible; and if the statement of the real facts constitutes a substantial violation of the statute, and can be so construed without departing from the true meaning of the words, it is the duty of the court to maintain the information dr indictment.

Guided by these rules, we are of opinion that the judgment of the First District Court of New Orleans should be affirmed, with costs.  