The opinion of the court was delivered by
As regards the point involved in the motion for a new trial, there is little doubt of the law at the period material tothe question. . “ It is agreed by all,” says Sergeant Hawkins, “ that a house wherein a-man dwells but for a part of the year; or a house which one has hired to live in, and brought part of his goods into it, but has not yet lodged in, may be called his dwelling house, and will sufficiently satisfy the words domus mansionalis in the indictment, whether any person were actually therein or not at the time of the offence.” (Hawk. P. C. B. 1 Ch. 38. § 18.) Otherwise, where the house is under repair, though part of the owner’s goods be deposited in it, for till he take possession with an intent to inhabit, it is not his mansion or dwelling. (Id. § 19.) It is certainly true, that the case referred to by Mr. Leach, the learned editor of Hawkins, is, by no means decisive, and it is also true, as remarked by Mr .East, (Cr. Law, 497,) that the point has since been frequently ruled otherwise. Bnt even the uncorroborated opinion of Sergeant Hawkins, whose Pleas of the Croivn has long been the text book of the profession, would be a safe foundation.for a decision. What is .there to prevent it from
The motion in arrest of judgment is founded on the absence of a direct averment, that the breaking and entering was with a felonious intent; and although a larceny is charged to have been committed afterwards, it is argued with much theoretical plausibility, that this may have been in pursuance of a design subsequently hatched. , It is certaiñ, that all material facts must be positively- charged instead, of being collected by inference; but in this particular the indictment is found to be in strict accordance with the most approved precedents, (Cro. Cir. Comp. 203,) and, for that reason, this motion, also, must be overruled.
, The prisoner was sentenced to five years solitary confinement in the Eastern Penitentiary.