State of Vermont v. Thomas Brady, 14 Vt. 353

The opinion of the court was delivered by Royce, J. It is said to be a rule applicable to indictments, that mere clerical and grammatical errors do not vitiate, unless they change a word, or render the meaning obscure. 1 Chit. Cr. L. 196. The omission of the word for in the introductory part of this indictment has done neither. It may have rendered the preceding word, £and,’ senseless and unmeaning, but can have no further effect. The grand jury within a county, when in regular organization and attendance upon the county court, are necessarily a grand jury both ivithin and for the county.

The other objection relates to the manner of charging the offence. It is alleged that the respondent broke and entered the dwelling house of Erastus Allen, (in the night time, &c.,) with intent to steal the goods and chattels of said Erastus Allen, in said dwelling house then being; and that, having so broken and entered said dwelling house, he stole certain goods and chattels, found in said house, belonging to Henry B. Allen.

As the crime of burglary consists in breaking and entering a dwelling house, &c., in the night time, with intent to commit some felony therein, such intent must be alleged in charging the offence. And it is not enough to allege an intent to commit felony generally, but some particular species of it must be named — as, to commit murder, robbery, or theft. And as the owner of the house must be named in charging the offence, so also, in the last example put, must the owner of the goods intended to be stolen.

It is not essential to the consummation of the offence, that the intent to steal should be executed; though it is said that if the indictment charges the theft to have been committed, the allegation must be proved. Here the intent to steal the goods of Erastus Allen is alleged, and, after verdict, should be taken to have been proved. But the actual stealing of his goods is not alleged, and therefore was not required to be proved. The objection, then, does not arise for want of a legal and sufficient charge of burglary, but upon the ground that the allegation of theft here made is not a part of that charge.

It assumes that the indictment shows an improper joinder of offences. But the charge of theft in these cases is never strictly included in the charge of burglary. The latter is fully expressed in charging the burglarious entry alone. Yet an additional allegation, in the same count, that the purposed theft was committed, has never been supposed to vitiate the indictment. Such, indeed, are all the precedents, when a theft immediately following the entry is expected to be proved.

Upon such an indictment the prisoner may be acquitted of burglary, and convicted of the theft, whilst a general verdict of guilty will cover both offences. Ph. Ev. 136 & 156. 1 Chit. Cr. L. 205-6. As the crime of burglary and the crime of larceny, thus committed, have a close connection in fact, so, it appears, they may properly be charged in a like connection. It is true, that the hope of stealing Erastus Allen’s goods prompted the commission of this burglary, and perhaps the present indictment furnishes the first instance of alleging a theft committed, which was not specially designed at the time of the entry.

But as wo discover no principle which, for the present purpose, should distinguish the one theft from the other, we think it indifferent, whether the alleged theft was of Erastus Allen’s goods, or those of another person. The result is that the prisoner can take nothing by his motion, and judgment must be entered upon the verdict.