Pells v. State

20 Fla. 774

• Court: Supreme Court of Florida
• Decided: June 15, 1884
• Status: Published

Opinion

Mr. Justice YanYaliienburgh

delivered the opinion of the court.

In November, 1882, the grand jury of Leon county found an indictment against William Pells, charging that he, on the twelfth day of January, A. D. 1881, “ with force and arms at, and in the county of Leon aforesaid, a certain building, to wit: the Main Exhibition Building of the Middle Florida Agricultural and Mechanical Fair Association, there situated, in the night time of said day, to wit: at about the hour of nine o’clock at night, feloniously and burglariously did bi-eak and enter with intent to commit a felony, to wit: to steal, take and carry away goods and chattels of the value of more than twenty dollars,” &c., &c. The defendant was tried and found guilty. lie moved for a new trial upon several grounds, among which was, that: “ There was no evidence before the jury to show the ownership of the building into which the breaking and entry are alleged to have been made. It was not shown to have been the property of any individual or individuals or of any corporation, and was conceded by the State Attorrney not to have been the property of a corporation but of th.e people living all over Middle Florida.” 'The motion was denied and the defendant duly excepted.

The defendant by his counsel then made a motion in arrest of judgment on several grounds, the only ones of which it is necessary to consider ai’e similar to the one above noted in the motion for a new tria1, viz :

“ That the said indictment does not allege the ownership of said building, and does not set forth the name of any owner or owners thereof.”

“ That said indictment does not allege the ownership of said building to have been in any corporation.”

The motion in arrest of judgment was denied and the defendant brings his writ of error.

The indictment is bad, and the motion in arrest of judgment should have been granted. It contains but a single count, in which the building is described as “ The Main Exhibition Building of the Middle Florida Agricultural and Mechanical Fair Association.” The ownership of the property is defectively stated. There is no allegation that such Association is incorporated. If it belonged to an unincorporated Association, the individuals comprising such Association are the owners, and their several names should have appeared in the indictment as such owners. If the ownership of the property is not stated, non constat but that the building was the property of the defendant, or that he was part owner as one of the Association. The rule is well settled that the ownershi]} of the building so burglariously entered must be alleged. “ The name of the owner of the dwelling house or of the building which was broken and entered must be stated with accuracy.” Heard’s Criminal Law, 436; 1 Bishop on Crim. Proc., §583; 1 Wharton Crim. L., §816; Beale vs. The State, 53 Ala., 460; State of Kansas vs. Fockler, 22 Kan., 542; State vs. Morrissey, 22 Iowa, 158; Wallace vs. State of Illinois, 63 Ill., 451; Jackson vs. The State, 55 Wis., 589; Com. vs. Perris, 108 Mass., 1.

The indictment in this case is fatally defective and the judgment is arrested and the defendant ordered to be discharged from imprisonment oh the indictment, judgment and sentence herein.