State v. Tovrea

In Banc.

AFFIRMED. This is an appeal from a judgment convicting the defendant of the crime of burglary. The sole question presented for decision is the sufficiency of the indictment, the charging part of which reads as follows:

"The said Tom Tovrea on the 9th day of April, A.D. 1926, in the County of Wallowa, and State of Oregon then and there being, did then and there willfully, unlawfully and feloniously break and enter a certain building, to-wit, a garage in Joseph, in the County and State aforesaid, the same being then and there a building in which there was property kept at the time, with the intent of him, the said Tom Tovrea, to commit larceny therein by forcibly breaking an outer door of said building contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon."

In so far as applicable to the offense charged in the indictment, our statute provides: "If any person shall break and enter * * any building * * in which any property is kept, with intent to steal therein, * * such person shall be deemed guilty of burglary * *." Section 1943, Or. L. And "every unlawful entry of any building, * * or other structure or erection mentioned in Section 1943, with intent to steal or commit any felony therein, shall be deemed a breaking and entering of the same within the meaning of Section 1943." Section 1945, Or. L.

The indictment is in the language of the statute and does not charge more than one crime. It is settled by the decisions of this state that where a statute describes an offense with such particularity as to inform the accused of the facts with which he is charged, an indictment which follows the language of the statute is sufficient: State v. Runyon, 62 Or. 246 (124 P. 259); State v. Frasier, 94 Or. 90 (180 P. 521, 184 P. 848). Under the statute referred to, the unlawful breaking and entering of any building in which any property is kept with intent to steal therein constitutes the crime of burglary. The indictment charges that the defendant broke and entered a building in which there was at the time property kept, with intent to commit a larceny therein. This was sufficient to inform the defendant of the facts with which he was charged and, since it stated all of the essential facts going to make up the crime and was substantially in the language of the statute, it was sufficient.

Again, the indictment was substantially in the form prescribed in the appendix to the Code as the form to be used where the crime charged is burglary. The manner of stating the acts constituting a crime, which follows the form provided for in the appendix to the Code, is declared by Section 1439, Or. L., to be sufficient in all cases where such form is applicable. The indictment being sufficient, the judgment must be affirmed.

AFFIRMED.

BEAN, J., did not participate in this opinion.