dissenting.
The indictment charges substantially that the defendant broke and entered into a mill-house, with intent then and there to steal, and wrongfully and fraudulently take and carry away certain tobacco, corn and tallow, naming the lot of tobacco and tallow, and the number of bushels of corn, and the value of each. It alleged the ownership of the mill-house, and of the property, and stated that the property was then and there in the same mill-house. A motion was made to arrest the judgment on the ground that the indictment was insufficient; the court overruled the motion, and this is the error assigned.
The main question is, does the word mill-house, ex vi termini, mean a place of business, so that the jury can understand it? or is it necessary to add to the word mill-house, that it is a place of business ? My brethren think it necessary to add those words. I do not. The language of the statute is *565“dwelling, mansion, or store-house, or other place of business,” where any article of value is contained. 'Well, tobacco, tallow and corn, are alleged to have been contained in this mill-house, and they are alleged to have been of value. The business of a mill-house is to keep corn to grind; it seems from the indictment corn was stored therein; therefore, the indictment, on its face, in addition to the language “ mill-house,” which means a place of business fqt grinding corn, shows that corn was stored therein, and it seems to me a jury would, from this charge, gather at once what sort of business was done in this mill-house, as well as that some business was done there, that it was a place of business, to-wit: of the business of grinding corn. Again, I suppose that tallow is a very necessary article about a running mill, to use in its machinery; tallow was stored here, and from this fact on the face of the indictment, I think it clear that the jury would know from the indictment that the mill was a place of business, and actually running. As to the tobacco, I suppose the miller chewed, and it was there for that purpose.
The Code declares that “every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of the Code, or so plainly that the nahore of the offense charged may be easily understood by the jury.” Now, though mill-house be not the word used in the Code, yet I honestly think that the jury could easily understand that it was a place of business, and the corn and tallow being in it, that it was then a place where the business of grinding corn was carried on. If, then, this section of our Code, 4628, means anything, it means that this indictment is “sufficiently technical and correct,” and “shall be deemed” so by the courts. In accordance with the legislative will, I deem it so, and so pronounce it.
Again, section 4623 of our Code declares that “no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offense charged in such indictment.” How the omission to call a mill-house where corn and tallow are stored, a place of business, can be construed to *566affect the real merits of this offense, I cannot see. Suppose the charge had been in a banking-house, and the intent to steal bank bills was charged, and the indictment alleged that the bank bills were in that house, could it be seriously contended that the jury could not easily understand it to be a place of business, or that the omission to say it was then and there a place of business affected the real merits of the offense? I really think not. But it may be said that though once a place of business, there is no allegation that it was such a place then, when the burglary occurred. I reply, the fact that corn was there showed it still a place of business, just as the fact that bank bills were in the banking-house would show it still a place of business. Therefore, I would, if I could, affirm the judgment of the court below, and, without further expense and delay, punish this convicted burglar and thief.