Gundy v. State

Wisconsin Supreme Court

Gundy v. State

38 N.W. 328, 72 Wis. 1, 1888 Wisc. LEXIS 199

DecidedMay 12, 1888

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This text of 38 N.W. 328 (Gundy v. State) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gundy v. State, 38 N.W. 328, 72 Wis. 1, 1888 Wisc. LEXIS 199 (Wis. 1888).

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Opinion

Cassoday, J.

It is sail that the information is insufficient under sec. 4409, R. S., by reason of the failure to allege that the building mentioned was “not adjoining or occupied with any dwelling-house.” The only object there would have been for such allegation would be to confine the charge to the lower grade of burglary described in the section cited, by negativing the existence of a distinguishing feature of a higher grade of the same offense prescribed in the two preceding sections. This court has recently passed directly upon the question, and in effect held that in charging an offense under the section cited it is not in[3]*3cumbent upon the state to allege the negative therein provided and contained in the words “not adjoining or occupied with any dwelling-house.” State v. Kane, 63 Wis. 261-268. The reasons for such holding are so fully given by Mr. Justice OetoN in that case as to preclude further discussion. The same rule was sanctioned in Nicholls v. State, 68 Wis. 420; Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714. The case cited by the learned counsel for the accused was not for an offense thus graded by statute, and hence is inapplicable.

The allegation of “a certain building,” without other words of designation, was sufficient. Clark v. State, 69 Wis. 203.

By the Court.— The judgment of the circuit court is affirmed.

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Cassoday, J.

It is sail that the information is insufficient under sec. 4409, R. S., by reason of the failure to allege that the building mentioned was “not adjoining or occupied with any dwelling-house.” The only object there would have been for such allegation would be to confine the charge to the lower grade of burglary described in the section cited, by negativing the existence of a distinguishing feature of a higher grade of the same offense prescribed in the two preceding sections. This court has recently passed directly upon the question, and in effect held that in charging an offense under the section cited it is not in[3]*3cumbent upon the state to allege the negative therein provided and contained in the words “not adjoining or occupied with any dwelling-house.” State v. Kane, 63 Wis. 261-268. The reasons for such holding are so fully given by Mr. Justice OetoN in that case as to preclude further discussion. The same rule was sanctioned in Nicholls v. State, 68 Wis. 420; Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714. The case cited by the learned counsel for the accused was not for an offense thus graded by statute, and hence is inapplicable.

The allegation of “a certain building,” without other words of designation, was sufficient. Clark v. State, 69 Wis. 203.

By the Court.— The judgment of the circuit court is affirmed.

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38 N.W. 328, 72 Wis. 1, 1888 Wisc. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gundy-v-state-wis-1888.

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