State v. Jordan

The opinion of the Court was delivered by Bermudez, C. J. The accused moved to quash the information for burglary and larceny filed against him, on the grounds : That it does not charge the essential words to constitute an information for burglary, to wit: feloniously and burglariously broke and entered the dwelling house in the night time. The motion was sustained and the information quashed. The State appeals. The information does not purport to charge burglary into a dwelling-house. It charges that the defendant did wilfully, maliciously and feloniously, and in the night time, break and enter the corn eri-b of March Scott, * * and having so broken and entered, did then and there, wilfully, maliciously and feloniously, one barrel of corn worth one dollar and the property of said March Scott, steal and carry away. The State says that the information was filed under the provisions of sec. 852, R. S. That section does not require that the accused be charged witli having burglariously broken in to and entered, etc. In State vs. Nelson, 30 Ann. 1253, the previous court held that the crime of burglary known to our law, is statutory ; that tbe statute defines it, and that we must, therefore, look to tbe statute to ascertain tlie essential averments of the indictment. ‘‘It is urged, said the Court, that it is uot sufficient'to charge that the act was “feloniously" done; that the charge should iilso be that it was burglariously done. * * It is sufficient to charge in 'the language of the statute that the offense had been committed feloniously. Whar. Cr. L. 399; 29 Ann. 602. It is therefore ordered and decreed, that the judgment appealed from be reversed ; that the motion to quash be overruled and that the ease be remanded for further proceedings according to law.