{ "id": 1894488, "name": "Shotwell v. The State", "name_abbreviation": "Shotwell v. State", "decision_date": "1884-11", "docket_number": "", "first_page": "345", "last_page": "349", "citations": [ { "type": "official", "cite": "43 Ark. 345" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "33 Ark., 517", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724889 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/33/0517-01" ] }, { "cite": "32 Ark., 704", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877135 ], "opinion_index": -1, "case_paths": [ "/ark/32/0704-01" ] }, { "cite": "1 Chand. 166", "category": "reporters:state", "reporter": "Chand.", "case_ids": [ 8712680 ], "opinion_index": -1, "case_paths": [ "/chand/1/0166-01" ] }, { "cite": "44 Ala., 398", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5467680 ], "opinion_index": 0, "case_paths": [ "/ala/44/0398-01" ] }, { "cite": "32 Cal., 36", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2244526 ], "opinion_index": 0, "case_paths": [ "/cal/32/0036-01" ] }, { "cite": "18 Ohio, 308", "category": "reporters:state", "reporter": "Ohio", "case_ids": [ 497747 ], "opinion_index": 0, "case_paths": [ "/ohio/18/0308-01" ] }, { "cite": "68 Ill., 271", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2627967 ], "opinion_index": 0, "case_paths": [ "/ill/68/0271-01" ] }, { "cite": "4 Met. 357", "category": "reporters:state", "reporter": "Met.", "case_ids": [ 8593035, 2065823 ], "opinion_index": 0, "case_paths": [ "/ky/61/0357-01", "/mass/45/0357-01" ] }, { "cite": "32 Ark., 704", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877135 ], "opinion_index": 0, "case_paths": [ "/ark/32/0704-01" ] } ], "analysis": { "cardinality": 441, "char_count": 7755, "ocr_confidence": 0.463, "pagerank": { "raw": 1.8562257994581793e-07, "percentile": 0.7242169331107721 }, "sha256": "2937b5abed00d02207adf344795db1de4eff45d33ba29df1c457cf5cf5adbb0c", "simhash": "1:63e3c5dab9427d34", "word_count": 1348 }, "last_updated": "2023-07-14T18:16:37.449042+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Shotwell v. The State." ], "opinions": [ { "text": "Cockrill, C. J.\nThe appellant was indicted for burglary under section 1348 of Gantt\u2019s Digest. The offense is charged to have been committed by breaking and entering iuto \u201c an out house commonly known as a sample room.\u201d It is urged that the indictment is in sufficient because :\n1. It does not charge the offence in the language of the statute, but in place of the statutory words \u201c willfully and maliciously and with force break and enter\u201d it substitutes the words \u201c feloniously, willfully and burglariously did break and enter.\u201d\nThe offence alleged in the indictment is created by the statute and it is required that the charge should be laid in the exact words of the statute or in others that convey an equivalent idea. It is sufficient if every particular element that enters into the crime is covered by the words of the indictment.\nIn the use of the word \u201cmaliciously\u201d in the statute we cannot presume that the legislature intended that malice towards the owner of the house entered, or toward any one else should become an element in the intent with which the breaking is done. The word must be understood from its context to be intended in its restricted legal significance which implies \u201c the intent from which follows any unlawful or injurious act, committed without legal justification,\u201d 1 Bishop Cr. Law Sec. 429. It means doing a wrongful act without just cause or excuse. 2 Bowvier L. Dict. Malice.\nBishop says that \u201c maliciously \u201d in an indictment has been adjudicated an equivalent to \u201c willfully \u201d in the statute. \u201c Maliciously\u201d is of somewhat larger meaning than \u201c willfully,\u201d which in an indictment would not therefore supply the place, it is presumed, of maliciously in the Statute.\u201d 2 Bish. Cr. Pr. Sec. 43.\nThe intention to do the wrongful or unlawful acts breaking and entering willfully and without legal cation, entered into the common law offence of burglary, and we are of opinion that\u2019no new element has been added to the offence by the use of the word \u201c maliciously \u201d in the section referred to. When the elements of a crime at common law and under the Statute are the same, the indictment may follow either as a general rule. 1 Bishop Cr. Pr. Sec., 612; Tally v. Commonwealth, 4 Met. 357; Lyons v. People, 68 Ill., 271.\nThe terms used in this indictment would be sufficient for the common law offence, and we think they adequately describe the statutory crime.\nThe effect of the ommission of the statutory words \u201cwith force\u201d in this connection is immaterial. The verb ,\u201c to break\u201d which is used in the indictment implies force, and its common law meaning is well understood. - In Ohio the word \u201c forcibly \u201d is used in the Statute where \u201c with force\u201d occurs in ours, and the court held that this was not intended to change the settled definition of burglary. Ducher v. State, 18 Ohio, 308.\nThe word \u201c maliciously \u201d was used in the Ohio Statute as in ours, but we are not aware that it was e^er held to change any of the settled rules of burglary, though it was there very properly incorporated into their precedents for indictments.\n2. It is insisted that the indictment is defective, because the felony, which the accused is alleged to have intended to commit when he entered the house is not specifically described. It is alleged that the entry was made \u201c with the felonious intent then and there to commit arson.\u201d It is well settled that the specification in such case need not be so minute as in an indictment for the actual commission of the offence. Thus in Bradley v. State in 32 Ark., 704, where the indictment was for burglary with intent to commit rape, the court say: \u201c It would have been sufficient to charge the defendant with entering the house of E. Sled with intent to commit a felony, to-wit, rape on the body of Mrs. Mary J. Sled.\u201d\nWhere larceny is the crime intended, it is generally held that something more specific than the mere name of the felony must be given, though some courts have held that no more is required. People v. Shater, 32 Cal., 36; Wicks v. State, 44 Ala., 398.\nIn case of arson there is obviously less necessity to particularize, and it is apparent that any person of common understanding would be apprised by the allegation quoted of what was intended thereby.\nExceptions were taken to the court\u2019s charge to the jury, but they are not urged here and we are unable to discover errror therein.\nAppellant asked the court to instruct the jury as lows, which was refused, viz:\n\u201c One of the material allegations in the indictment is that the house described therein is an out house, and I further charge you that in contemplation of law an out house is one of a cluster of buildings connected with a building, and not separated from it by a highway, and unless you find that both have been pi\u2019oven beyond a reasonable doubt, you will acquit the defendant.\u201d\nAny house under our Statute comes within the prohibition against burglary and arson, and it was not proper to define an out house as one within the curtilage as the appellant\u2019s prayer for instruction implies. The proof showed that the house was contigous to and used in connection with a hotel, the two belonging to and being controlled b'y the same person. This was enough to make it an out house. Bishop St. Cr. Sec., 291.\nFinding no error in the record the judgment is affirmed", "type": "majority", "author": "Cockrill, C. J." } ], "attorneys": [ "W. F. Pace for appellant.", "Moore, Att\u2019y Gen\u2019l, contra." ], "corrections": "", "head_matter": "Shotwell v. The State.\nl-k Burglary: Indictment for.\nAn indictment for burglary charging that the defendant \u201c feloniously, willfully and burglariously did break and enter,\u201d is equivalent to charging in the language of the statute that he \u201c willfully and maliciously and with force did break and enter.\u201d The word \u201c maliciously \u201d in the statute does not mean malice towards the owner of the house entered, but the intent from which follows the unlawful act; and the words \u201c did break \u201d imply force.\n2. Indictment : When crime is the same by statute and common law.\nWhen the elements of a crime are the same by the common law and by statute,the indictment may follow either, as a general rule\n3. Same : Burglary: Specifications of intent.\nAn indictment for burglary charging that the defendant entered \u201c with the felonious intent then and thereto commit arson,\u201d sufficiently specifies the felony intended to be committed.\n4. Burglary : Out house.\nAny house under our statute comes within the prohibition against burglary and arson. An out-house is not necessarily within the eurtilage. A house contiguous to and used in connection with a hotel, both belonging to and controlled -by the same person is an out-house.\nAPPEAL from Carroll Circuit Court.\nHon. J. M. Pettigrew, Circuit Judge.\nW. F. Pace for appellant.\nThe indictment is bad because it does not set out with certainty the crime defendant is alleged to have intended to commit when entering the house. 24 Ges. 24; 12 Tex-Ct. of App., 395 ; Gantt\u2019s Dig. See. 1796. Nor does it con. tain the word \u201c maliciously.\u201d Gantt\u2019s Dig. Sec., 1348 ; Waterman\u2019s U. S. Or. Dig. p. 343, See., 230; 34 N. II. 510; 1 Chand. 166.\nAs to what is an out house see Bowvierp. 147; Bishop Or. Law vol. 3 See. 104; Boseoe Or. Ev. p: 278; Gantt\u2019s Dig. See. 1795.\nMalice is a necessary ingredient in the crime of burglary. Gantt\u2019s Dig. See. 1348.\nMoore, Att\u2019y Gen\u2019l, contra.\nThe indictment is almost in the exact words \u2014 mutatis mutandis \u2014 of the indictment in Bradley v. State, 32 Ark., 704; see also.Dodd v. State, 33 Ark., 517.\nOur statute makes the breaking or entering \u201c any house, tenement,\u201d &c. in the night time, with intent to commit a felony &c. burglary. Gantt\u2019s Dig. See. 1348; 33 Ark., 517.\nBy See. 1349 Gantt\u2019s Dig. a party may be adjudged guilty of burglary and of the other felony intended to be committed, andjf the State saw Jit to indict for the burglary as in Bradley v. Stale, defendant cannot complain." }, "file_name": "0345-01", "first_page_order": 369, "last_page_order": 373 }