State v. Short , 54 Iowa 392 ( 1880 )

Seevers, J.

. meat fburglary. I. It is urged that the indictment is insufficient because it does not charge the breaking and entering was “burglarious;” that is, that the omission of suc^ word constitutes a fatal objection to the indictment. The statute under which the indictment was found provides: “ If any person break and enter any dwelling-house in the night time with intent to commit a public offense, he shall he deemed guilty of burglary. Code, § 3891. The breaking and entering with the required intent constitutes the statutory crime. This is clearly charged, and the defendant is deemed guilty of burglary, because the statute so provides. Tlic .material thing is the intent with which the breaking is done. This is sufficiently stated in the indictment.

2_._. • II. The evidence shows that the name of the party charged to have been injured is Thomas II. Elder; the indictment . states the name to be T..II. Elder;, the evidence clearly establishes that Thomas II. Elder and T. 1 IT. Elder is the same person. The substantial rights of the defendant were not prejudiced by the refusal of the court to charge the jury “ that if they found the facts above stated to be true they must acquit.” Code, § 4306.

III. The evidence showed that Phoebe Elder -was the owner of the property referred to in the indictment as the dwelling-house of T. IT. Elder; but it also showed that T. H. Elder was in possession, as hereinafter stated. This variance between the indictment and proof is not sufficient to entitle the defendant to an. acquittal. The State v. Golden et al., 49 Iowa, 48.

IT. The evidence showed that T. II. Elder and Phoebe Elder were husband and wife, and that the house entered was their homestead, and that T. II. Elder was the head of the family. We think the house was in the possession, for the purposes of this case, of T. II. Elder. Being the head of the family he had the possession and control of the premises, or, to say the least, was in lawful occupancy thereof. It seems to us it matters not to whom the legal title to the homestead belongs. If the husband and wife are living thereon the possession of the premises must necessarily, in the absence of any showing to the contrary, be in the head of the family.

Affirmed.