#### Bell and another vs. The State.

*Criminal Law*— Indictment—“ *Dwelling housd’*— Omission *of negative words*— Secs. 9 *and*10, *ch.*165, *B. S.*

1. In an indictment at the common law for burglary and larceny, and also in an indictment under secs. 9 and 10, ch. 165, R. S., the words “the dwelling house of A.,” used to describe the building broken and entered, are a sufficient averment that such building was A.’s place of residence, and that he occupied it as such at the time laid.

2. An indictment under section 9 of said chapter must charge that there was some person lawfully in the house at the time; but one under sec. 10 need not charge that fact; nor need it negative the being armed or arming with a dangerous weapon, or the making of an assault upon a person lawfully in the house, which are necessary to constitute the higher offense named in the previous section.

EEEOE to tbe Circuit Court for *Milwaukee*County.

Tbe plaintiffs in error were convicted on an indictment of wbicb tbe first count charged (with specification of time and *600place) that tbe accused “ tbe dwelling bouse of Oscar C. Per-ris, situate in tbe city of Milwaukee in said county of Milwaukee, feloniously did break and enter, witb intent tbe goods and chattels and property of tbe said Oscar C. Perris, in tbe said dwelling bouse then and there being, then and there in the said dwelling bouse feloniously and burglariously to steal, take and carry away and it then proceeds in tbe usual form to further charge them witb actually stealing then and there certain specified articles of tbe property of said Perris. Tbe second charge was similar in form, but omitted tbe charge of actual theft.

A motion in arrest of judgment and for a new trial, was denied ; and each of tbe prisoners was adjudged to two years imprisonment at bard labor in tbe state prison.

*F. Fox Goo7c,*for plaintiffs in error,

cited Archb. Or. PI. (3d Am. ed.), 251-3, 51-3, 42-3; 2 Hale, 170; 1 Term, 141; 5 id., 83; 15 East, 456 ; 1 id., 643 ; Leach, 580 ; 2 East’s P. C., 782; 1 33. & H., 362 ; 1 Bennett & H. Lead. Or. Cases, 250, 356-7, and authorities there cited; *Com. v. John*Hart, 11 Cush., 130; *State v. Delue,*1 Chand., 166; 5 Denio, 76; *Lacy v. The State,*15 Wis., 13; 1 Cbitty Or. Law (5th Am. ed.), 231, 284 ; 2 Pick., 141; 2 Nott & McO., 365 ; 2 Yerg., 233 ; 15 Vt, 290; 24 Pick., 374; 5Halst., 293; 8 Mass., 65; 2 id., 130 ; 1 Pick., 139 ; 3 id., 283; 6 Serg. & R, 5. Prom these authorities counsel argued tbat in charging an offense under sec. 10, ch. 160, R. S., it is essential to state in tbe indictment tbat there was some person lawfully in tbe bouse, and tbat tbe offender was *not*armed, and did *not*arm himself in tbe bouse, witb a dangerous weapon, nor make any assault, &c.

Tbe *Attorney General,*contra,

cited *Laeyv. The State,*15 Wis., 13 ; *Comm. v.*Squire, 1 Met., 258 ; *Devoe v. Comm.,*3 id., 316 ; *Lamed v. Comm.,*12 id., 240 ; *Fleming v. People,*27 N. Y., 329 ; *Comm. v. Griffin,*21 Pick., 523 ; *Curran's Case,*7 Gratt., 619 ; *Grubb v. The State,*14 Wis., 434. Negative words in a statute may be omitted in tbe indictment. *Bex v. Pearce,*Russ. &Ryan, 174; *Rex v. Robinson,*id., 320 ; *Rex v. Baxter, 5*Term, *60183 ; *Bex v. Pollard,*2 LcT. Baymond, 1370; 1 Chitty’s Cr. Law, 283-4. He also contended that tbe indictment was good at common law, and tbat tbe statute was merely cumulative. *Bex v. Wright,*1 Burr., 513 ; *Bex v. Bobinson,*2 id., 799 ; *Bex v. Boycdl,*id., 832 *; Bex v. Garlile,*3 Barn. & Aid., 161; *Bex v. Balme,*Cowp., 648 ; 1 Buss, on Crimes, 50, 51; Whart. Crim. Law, 39, 40; *Bex v. Dickinson,*1 Saunders, 135, note 4 ; *Bex v. Wigg,*2 Ld. Baymond, 1163 ; *Turnpike Co. v. People,*15 Wend., 267; Arcbb. Cr. PL, 56; *Behan v. People,*17 N. Y., 516.

Dixon, C. J.

Tbe words “tbe dwelling-house of Oscar,’C Ferris,” mean tbat tbe building broken and entered was bis place of residence, and tbat be occupied it as such at tbe time of tbe breaking and entry. An averment in this form is good in tbe common law indictment for burglary and larceny, and under tbe English statute, and tbe same is true under our statute. E. S., cb. 165, secs. 9 and 10.

Under section 9, no doubt, for tbe higher offense of breaking and entering a dwelling bouse in tbe night time, with intent to commit tbe crime of murder, rape, larceny &c., tbe offender being armed with a dangerous weapon at tbe time of such breaking and entering, or so arming himself in such bouse, or making an actual assault on any person lawfully therein, tbe indictment must charge tbat there was some person then lawfully in tbe bouse at tbe time. There being some person lawfully therein is, by tbe statute, one of tbe facts necessary to constitute tbe offense. If a thief, breaking and entering to steal armed with a dangerous weapon, or so arming himself in tbe bouse, should find there another thief who bad broken and entered for tbe same purpose, or, not being armed, should assault such other thief — or if two thieves should break and enter together armed, or arming themselves with dangerous weapons, or, being without such weapons, should fall out, and one make an assault upon tbe other, there being no other person in tbe bouse *602—it is clear tbat tbe offense described by section 9 would not be complete, and the offender could not be punished under it. But in section 10 the condition, “ any person then being lawfully therein,” is omitted. This indictment was drawn, and the plaintiffs in error tried, convicted and sentenced, under that section. Under that section the indictment is good. Such an indictment need not negative the being armed or arming with a dangerous weapon, or the mating of an assault upon a person lawfully in the house, necessary to constitute the higher offense named in the preceding section. *Rex v.*Pearce, Russ. & Ryan’s C. C., 174; *Rex v.*Robinson, id., *320.*

*By the Court.—*Convictions affirmed.