45 N.J.L. 340 | N.J. | 1883
The opinion of the court was delivered by
The 'writ of error in this case brings up the record and conviction of the plaintiffs in error upon an indictment tried in the Court of Quarter Sessions of the county of Essex. The indictment contains two counts: one charging the defendants with breaking and entering, in the night-time, the storehouse of James Traphagan, with intent to steal; the second count charges them with breaking and entering the storehouse of James Traphagan in the daytime, with like intent. Three bills of exception were sealed, by which it appears, first, that the court refused a motion of the plaintiffs in error to postpone the cause, on the ground that the crime charged in the indictment was burglary, and that neither a copy of the indictment nor a list of the jurors had been served upon them two days prior to the day of trial, nor at any time. The second, that each of the defendants claimed the right to twenty peremptory challenges on the trial, and which the court refused; and third, to the refusal of the court to order the jurors to be sworn separately' as drawn from the box. The errors are assigned upon the matters contained in the bill of exceptions and to the form in which the judgment was entered. The first error assigned is that the defendants were charged with the crime of burglary, and were entitled to service of a copy of the indictment, with a list of jurors as required by law, two days before the day of trial of said defendants,
But it is said that in this state the crime of burglary has been enlarged beyond the common law definition so as to bring within its meaning the particular offence here charged, as well as a large number of others having affinities with the graver crime. In some of our sister states, the definition of the crime of burglary has been widely extended, notably so in New York, where it has been divided into several degrees, under one or other of which, every sort of entry, whether with or without breaking, in the daytime or night-time, is included. And something of this sort, in very, early times, seems to have been started in this state, for during the proprietary governments, in the capital laws passed in 1668, is found this provision: “ If any person within this province shall commit burglary, by breaking open any dwelling-house, storehouse, warehouse, out-house or barn, or any other house whatsoever, he or they so offending shall, for the first offence, be punished by being burnt in the hand with the letter ‘ T,’ and make full satisfaction of the goods stolen or the damages that are done j and for the second time of offending in the like nature, besides the making of restitution, to be branded in the forehead with the letter ‘ R,’ and for the third offence to be put to death as incorrigible.” Leam. & Spicer 79. Very little, I think, is to be gained from this for our present purposes. The thirtieth section of the Crimes act of 1796, found in Paterson’s Revision, enacts that if any person shall' by night, wilfully and maliciously, break and enter any church, meeting-house or dwelling-house, with intent to kill, rob, steal or commit a rape, every such person shall be deemed guilty of a high misdemeanor, and shall be punished by fine and imprisonment for a term not exceeding ten years. The twenty-fifth section of the same act makes the wilful and malicious breaking and entering, in the daytime, of any dwelling-house, warehouse or other building, with like intent, a high misdemeanor, punish
The thirtieth section of the act of 1796 and the sixteenth section of the act of May, 1820, were combined by the ant of February 7th,. 1829, which was designed to embody our criminal statute, forming its thirtieth section, and in it the higher penalty was retained. The sections thus united stand unchanged in, our Revision as the ninety-third section of the Crimes act. No one would have contended that the sixteenth section of the supplement of 1820 was an attempt to define 'the crime of burglary, or that the offences therein provided for came within its limits. Subsequent union with the thirtieth section of the act of 1796 would seem to have been
Neither of these views seems to me to be legally correct. It was to the trial of the high crime of burglary that the statute meant to affix these incidents. Our law has not changed that crime from its common law meaning as understood when the provisions were enacted which secured to defendants these exceptional privileges on the trial, and when a defendant is charged with an offence which, at the common law, constitutes that crime, whether the indictment be framed upon the statute or the common law, the sixty-sixth and seventy-first sections apply, and give to such defendant the rights there provided for. But he has not these statutory privileges as his right, when charged with breakings such as are not embraced within the common law crime of burglary. •
The objection to the form of the judgment was not much relied on by the plaintiffs in error. It was, at most, a mere irregularity in the entry of the judgment, which the court, at the same time, corrected. Without amendment, it was, I think, substantially correct, and could only be read as a sentence of each for the term of ten years. State v. Johnson, 5 Dutcher 453.
There is no error in the judgment, and it should be affirmed.