Bigham v. State , 31 Tex. Crim. 244 ( 1892 )

Defendant was indicted for burglary with intent to commit theft, and sentenced to three years in the penitentiary, from which he appeals.

The defendant moves in arrest of judgment on the ground that the indictment charges no offense known to the laws of Texas. The indictment charges that the defendant did break and enter into the sheriff's office, with force and fraud, and did then and there, by force and fraud, break and enter a certain vault, situated in said sheriff's office, then in the possession and control of the said sheriff, etc. The specific objection was that the indictment did not charge that a house was burglarized. Is this indictment fatally defective in not using the precise words of the statute, and alleging the sheriff's office was a "house?" It is declared by the code that words used in a statute to define an offense need not be strictly pursued in an indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words. Code Crim. Proc., art. 428a; Willson's Crim. Stats., secs. 1984, 1955.

An "office," as defined by Webster, is "a house or apartment in which public officers and others transact business; as, a register's office, a lawyer's office." A "vault," by the same authority, is "a cellar." The indictment alleges the breaking and entry into the sheriff's office, and also into the vault situated in said office. The statutory definition of a "house" is, "any building or structure erected for public or private use." Penal Code, art. 709.

In the Anderson case, 17 Texas Court of Appeals 305[17 Tex. Crim. 305], this court has held that the corner of a store, picketed off as an office, where the books and accounts of the firm were kept, is a house within the statutory definition; and so is an apartment in which public officers transact business. We think the place described in the indictment as being burglarized was necessarily a "house" as defined in the code. A familiar illustration of this rule of construction arises under the statute punishing the "theft of cattle." An indictment alleging the theft of a steer was declared by Bell, judge, to be sufficient, without the further allegation of the same being cattle (Lange's case, 22 Tex. 591 [22 Tex. 591].), and this decision has always been followed. Willson's Crim. Stats., sec. 1316. And so in other States. Thus, in Missouri, under a statute defining "burglary" to be the "breaking of any shop, store, booth, tent, warehouse, or other building," the indictment alleged the defendant did break and enter "the depot" of a certain railway company. Held, it could be sustained, as the depot was either "a warehouse" or "other building." The State v. Edwards (Mo. Sup.), 19 S.W. Rep., 91. Again, in Ohio, under a statute defining "forgery" to be the "making of a false bill of exchange or other contracts for the payment of money," an indictment for forging "an endorsement on a promissory note" was objected to for insufficiency in not describing the offense in the precise words of the statute. The court says the precise words are not always indispensable. The offense should be set out with clearness and certainty, and be so described as to bring it within the statute. Poage v. The State, 3 Ohio St. 234; Kennedy v. The State, 34 Ohio St. 310; United States v. Bachelder, 2 Gall., 15.

Tested by the rules stated, we think the indictment sufficiently charges the offense of burglary in charging the entry into the sheriff's office and into a vault in said office.

Defendant further shows cause in support of his motion to arrest the judgment, that the indictment fails to set out the essential elements of theft, but simply alleges the breaking was done "with intent to commit theft." It has been held by this court, that where the indictment for burglary also charges theft of specific articles, it is not necessary to set forth the essential terms of theft in charging the intent. This has been directly decided in this State. Williams' case, 24 Texas Ct. App. 69[24 Tex. Crim. 69]; Commonwealth v. Brown, 3 Rawle, 207.

We find no error in the charge of the court, and the verdict is fully supported by the evidence, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.