5 Binn. 277 | Pa. | 1812
It is contended on the part of James Taylor, that the matter charged in the indictment is no more than a private trespass, and not an offence subject to a criminal prosecution. On the other hand it has been urged for the commonwealth that the offence is indictable; 1st, as a forcible entry, — 2d, as a malicious mischief.
1. I incline to the opinion that the matter charged in the indictment does not constitute a forcible entry, although no doubt a forcible entry is indictable at common law. There must be actual force to make an indictable offence. The
2. But supposing the indictment not to be good for a forcible entry, may it not be supported on other grounds? In the case of the Commonwealth v. Teischer, 1 Dall. 333, judgment was given against the defendant for “ maliciously, wilfully and wickedly killing a horse” These are the words of the indictment, and it seems to have been conceded by Mr. Sergeant, the counsel for the defendant, that if it had been laid to be done secretly, the indictment would have -been good. Here the entering of the house is laid to be done “ secretly, maliciously, and with an attempt to disturb the “ peace of the commonwealth.” I do not find any precise line
I am perfectly satisfied that an indictment will not Tie for a mere civil injury, although some of the precedents in West’s Symboliography seem to wear a dif
I am inclined to think, that the second count in this indictment, whereon the defendant has been convicted, may be supported as an indictment for forcible entry at common law, under the authority of Rex v. Bathurst et al. cited by the court in Rex v. Storr, 3 Burr. 1699. Three of the judges lay a stress upon the circumstance of its being an entry into a dwelling house, though Lord Mansfield did not seem to adopt that sentiment. Here the entry is laid to have been in a dwelling house, without using the words with a strong hand. In these two particulars the cases agree.
Be this as it may, it appears to me, that other facts are stated in this count which are proper subjects of a criminal prosecution. The jury have found by their verdict, that the defendant in the night time, unlawfully, maliciously, and secretly, with force and arms broke and entered the dwelling house of James Strain, with intent to disturb the peace of this commonwealth; and so being in the said house, unlawfully, wilfully, vehemently, and turbulently did make a great noise, in disturbance of the peace of this commonwealth, and greatly misbehave himself in the said dwelling house, and Elizabeth Strain, the wife of the said James Strain greatly did frighten and alarm; by means of which said fright and alarm, the said Elizabeth, being then and there pregnant, did miscarry within fourteen days afterwards, and other wrongs to her then and there did to her great damage, to the evil example of all others in like cases offending, and against the peace, &c.
The several circumstances of time, manner, temper of mind, the-deliberate act, breach of the peace, and the injurious consequences attendant thereon, form strong characteristical features of a public offence punishable by the criminal law. The intention to disturb the peace and the actual disturbance thereof, to the evil example of others, are expressly charged and found. At the same time I admit that the charge of misbehaviour in the house generally is too vague,
It cannot be inferred, vi termini, that the word break, means more than a clausum fregit, or a breaking of the close in contemplation of law, even though a dwelling house was the close broken; because the trespass might be by walking into it, the door open. But the court might refuse to quash, because it might appear on the evidence, that the breaking amounted to more than a clausum fregit in trespass. But taking the entry to amount to nothing more than a walking in, the door open, may mot the motive of his entry, and the use he made of it, constitute a misdemeanour? What is he alleged to have done, after entering the house? “ Wilfully, vehemently, and turbulently did make a great noise.” How is a noise occasioned that is perceptible to the ear? It must be by an impulse of the air on the organs of hearing. And what is it, whether it is by the
The judgment ivas accordingly reversed; and the Court directed that the record should be remitted to the Quarter Sessions, that they might proceed to give judgment against the defendant.