Davis v. State

51 Fla. 37

• Court: Supreme Court of Florida
• Decided: January 15, 1906
• Status: Published

Opinion

Whitfield, J.

An indictment was presented by the grand jury in the Circuit Court for Calhoun county charging in a single count that Elijah Davis, on September 11, 1904, “with force and arms, at and in the county aforesaid, a certain building, to-wit: that certain building commonly known as and called the store house of one B. F. Pope there situate, feloniously and burglariously did break and enter, with the intent then and there to commit the crime of larceny,” &c.

A motion to quash the indictment Avas denied.

The defendant was convicted, and on writ of error here assigns as error the denying of tli e motion to quash the indictment.

In the case of Pells v. State, 20 Fla. 774, where it is charged that the accused feloniously and burglariously did break and enter, &c., “a certain building, to-wit: the main exhibition building of the Middle Florida Agricultural and Mechanical Fair Association” this court said: “The indictment is bad. * * * The ownership of the property is defectively stated. * * If the ownership of the property is not stated, non constat but that the building was the property of the defendant. * * * The rule is well settled that the ownership of the building so burglariously entered must be alleged. The name of the owner of the * * * building which was broken and entered must be stated with accuracy.” Heard's Criminal Law, 436; 3 Ency. Pl. & Pr. 757.

In the Pells case the indictment was held to be fatally defective because the allegation as to the ownership of the building did not sufficiently designate the owner. In this case there is no allegation as to the ownership of the property; the words used being merely descriptive of the building which it is charged the accused “feloniously and burglariously did break and enter,” &c.

The reasons for requiring the ownership of the building, the defendant is charged with feloniously and burglariously breaking and entering, to be alleged in the indictments are, (1) For the purpose of showing on the record that the building alleged to have been broken into was not the property of the accused inasmuch as one cannot commit the offense of breaking and entering his own building; (2) For the purpose of so identifying the offense as to protect the accused from a second prosecution for the same offense. State v. Trapp, 17 S. C. 467, S. C. 43 Amer. Rep. 614; 6 Cyc. 210.

Where an indictment for feloniously and burglariously breaking and entering a building contains no allegation as to the ownership of the building, the indictment is fatally defective and a motion to quash it should be sustained. See Commonwealth v. Perris, 108 Mass. 1.

An indictment which charges that the accused feloniously and burglariously did break and enter, &c., “that certain building commonly • known as and called the store house of one B. F. Pope,” and contains no allegation as to the 'ownership of the building, is fatally defective; and a motion to quash the indictment should oe sustained, since the quoted words are merely descriptive of the building and are not an allegation as to the ownership of the building. See State v. Hupp, 31 W. Va 355.

There is nothing in the cases of Tilly v. State, 21 Fla. 242, Leslie v. State, 35 Fla. 171, 17 South. Rep. 555, Rimes v. State, 36 Fla. 90, 18 South. Rep. 114, Charles v. State, 36 Fla. 691, 18 South. Rep. 369, Crosky v. State, 46 Fla. 122, 35 South. Rep. 153, in conflict with the rules here announced, since in every one of such cases there was an allegation of ownership of the building.

The indictment being fatally defective the judgment is reversed and the cause is remanded with directions to quash the indictment, the costs to be taxed against Calhoun county.

Shackleford, O. J., and Cockrell, J., concur. Taylor, Hocker and Parkhill, JJ., concur in the opinion.