People v. Shaber

Sanderson, J., dissenting:

I am of the opinion that the indictment is not sufficient because it does not describe the intent with which the “ breaking and entering” was effected. It is not sufficient, in indictments for burglary, to allege the intent to be “ to commit larceny,” or “to commit rape,” or “to commit murder,” as the case may be, and there stop. The offense intended must be described, or, in other words, the acts which the defendant intended to commit, after having effected an entrance into the building, must be described for the purpose of showing what the intent was. This is but a familiar principle in every system of pleading, either civil or criminal. The facts are to be stated, to the exclusion of conclusions of law to be drawn therefrom. Where an intent to commit an offense is to be charged there is as much necessity for describing the offense intended as there is where the commission of the offense is charged directly. It is not for the pleader to say whether the acts intended amount to larceny, rape or murder, but for the Court, and the acts, therefore, which constitute the one or the other must be alleged. If it would be insufficient in an indictment to allege that the defendant at a certain time and place committed larceny, it is for the same reason insufficient to so allege when it is proposed to charge him with an intent to commit the offense. The averment is no more a conclusion of law in the former than in the latter case. The acts constituting the offense, whether it was in fact committed or was intended to be committed, must be stated, and that, too, for the same reason. In my judgment an intent to do an impossible act is not criminal, and hence the facts, showing the intent to have been possible, should be stated.

I think the judgment should be reversed.