44 Mass. 316 | Mass. | 1841
The object of the present writ of error ,s tc reverse a judgment rendered against the prisoner, at the court of common pleas in this county, at the December term, 1834. It appears by the record of the judgment returned on this writ, that the prisoner was indicted, for having, at Roxbury, broken and entered in the night of August 6th 1834, "the office, there situate, of the President, Directors, and Company of the Bank
This being a judgment rendered in 1834, its validity must depend on the law as it stood at that time. Much reliance is placed, by the counsel for the prisoner, upon the remarks of the court in the case of Commonwealth v. Tuck, 20 Pick. 356. In the first place, it is to be remarked, that the opí ,-n in that case referred to an indictment found for an offence ccr/nnitted after the revised statutes went into operation ; am' the qirotion therefore depended on the provisions of those statutes. If there was any real ijifferenee^Jbetween them and the former statutes, as was argued in Vnat case, it would afford little aid in the decision of the present. But a more decisive answer to the argument Irawn from that case is, that though the question now presen.od, namely, whether in an indictment for shop-breaking in the night time, it was necessary in terms to describe it as “ an ofice or shop not adjoining to or occupied with a dwelling-house,” was raised in the argument and somewhat discussed in the opinion, yet it was not embraced in the decision. On the contrary, the court avoided giving an opinion on that question, and ,the cause was decided on the ground, that it was competent.' for the attorney general to enter a nolle prosequi as to the breaking and entering, and then the judgment would be good as a punishment for the larceny.
'But it is of importance, not so much for the decision of the present case, as to have a clear view of the provisions of these statutes, and to preserve uniformity in the adjudications upon them, to inquire whether there is any difference, in legal construction and effect, between the revised statutes on the subject, arid the former statutes, and to ascertain what that difference is.
In Commonwealth v. Tuck, it was argued, that the above provision, designed to prohibit and punish shop-breaking in the night time, and actually stealing therefrom, was repealed, and not reenacted, by the revised statutes. It appears, on comparison, that it is not reenacted in''terais, and the question is, whether it is so in legal effect. The St. of 1804, c. 143, § 4, is in these terms : “If any person, in the nightNjme, shall break and enter any shop, warehouse, or office, not adjoining to or occupied with a dwellinghouse, &c., and shall there commit a larceny,” &c. The Rev. Sts. c. 126, § 11, provide, that “ every person, who shall break and enter, in the night time, any office, shop, or warehouse, not adjoining to or occupied with a dwellinghouse, with intent to commit the crime t^f murder, rape, robbery, larceny, or any other felony,” &c. \ It is obvious that the provision in the revised statutes, though shorter in words,-is much more comprehensive, and embraces xnocturnal shop-bt^aking, with intent to commit any felony, and is not confined to larceny. But the more specific difference^ is, that whilst the former statute extended only to a case of nocturnal shop-breaking and actual stealing, the latter includes ja; similar breaking with intent to steal. Does the latter include 1 the former ; and may a case of breaking and actual stealing be indicted and punished under the revised statutes, which punish a similar breaking with intent to steal ? This point was soffit
Taking this point to be well established, it follows, that under the Rev. Sts. c. 126, § 11, making it a crime to break and enter a shop) in the night time with intent to steal, it would be a good indictment to allege, that the party charged did so break
We are then brought back to the question, whether the omission of the averment, in the indictment now before us, in describing the office of the President, Directors, and Company of the Bank of Norfolk, that it was not adjoining to or occupied with a dwellinghouse, was such a fatal defect as rendered the judgment erroneous and void'. It is contended, that these words constitute a necessary ingredient, and an essential part of the description of the crime, and that without them the averments may all be true, and yet the party charged be guilty of no punishable crime. This depends úpon another question, as intimated in the opinion in Commonwealth v. Tuck; namely, whether, as the law then stood, the breaking and entering, in the night time, of a shop adjoining to or occupied with a dwellinghouse, with a felonious intent, was or was not punishable by law. If this was not so, it was certainly a singular omission, and must have been an inadvertent one.
We are to construe the words of a statute, as they were understood and intended by the legislature who passed it; and we are to gather such meaning and intent from the language used,
The act against burglary which was in force when St. 1804, c. 143, was passed, was St. 1784, c. 48; and that against breaking up a dwellinghouse in the day time, shop-breaking with felonious intent in the night lime, and kindred offences, was St. 1784, c. 66, § 8.
The St. of 1784, c. 48, against burglary, was very short, and provided that if any person should, in the night time, burglariously break and enter any dwellinghouse with intent to kill, rob, steal, or commit any other felony, he should, on conviction, suffer the pains of death. In this short act, it will be perceived that the legislature give no definitions or descriptions whatever ; no intimation, even, of what shall be deemed a dwellinghouse, or what shall be considered breaking or entering, or night time. To ascertain the meaning of these terms, and apply them to particular cases, with all the limitations and qualifications which belonged to them, the legislature referred, as most other cases of like kind do refer, to the common law. Even in cases of murder and rape, although the statute declares the penalty, it tacitly refers to the common law, to determine what acts constitute these offences respectively, and to determine whether any particular case is within it.
By the common law, every house for the dwelling and habitation of man is taken to be a mansion house, wherein burglary may be committed. 2 East P. C. 491. The mansion house not only includes the dwellinghouse, but also - the outhouses, such as barns, stables, cow-houses, dairyhouses, and the like, if they be parcel of the messuage, though they be not under the same roof, or joining contiguous to it. 2 East P. C. 492. Any outhouses, within the curtilage.or same common fence as the mansion itself, must be considered as parcel of the mansion. But no distant oarn, warehouse, or the like, is under the same privilege, nor indeed any outhouse, however near, if it be not parcel of the messuage. But if the outhouses be adjoining the dwellinghouse, and occupied as parcel thereof, though there be
The other statute above cited, 1784, c. 66, § 8, provided a punishment for the breaking up of any dwellinghouse in the day time, or entering any dwellinghouse in the night time, or breaking any warehouse, shop, or other building, by night or by day The same remark may be applied to this, as to c. 48, that it refers wholly to the common law to determine what is a dwellinghouse, and what a shop, or other building. Both of these statutes were in force when the act in question (St. 1804, c. 143,) was passed, and must be presumed to have been in the mind of the legislature.
If then we take the statute against burglary, as it then existed, and consider the term “ dwellinghouse,” according to its legal effect as determined by the rules of the common law, it prohibited, under the same penalty, the breaking and entering of any dwellinghouse, or shop, or other building, so within the curtilage or common enclosure, or so adjoining to or occupied with the dwellinghouse, as to constitute parcel of it. If we can justly infer, that the legislature intended, by the use of the words “not adjoining,” &c. to Include all buildings, the breaking and entering of which would not amount to burglary, it would reconcile the different provisions, and avoid the improbable supposition, that the legislature intended to visit, with a severe punishment, the breaking of buildings not adjoining dwellinghouses, leaving unpunished, or wholly overlooking, the case of breaking buildings adjoining to or occupied with a dwellinghouse. And the court are of opinion, that the legislature, by “ a shop, warehouse, or office, not adjoining to or occupied with a dwellinghouse,” intended to designate all shops and outhouses, which were not so adjoining and occupied as to be part and parcel of the mansion house ; and considering that if a shop, &c, were adjoining to or occupied with a dwellinghouse, it would be deemed parcel of it, and then breaking and entering it would he liable to be charged and punished as the higher crime of capital burglary. The words “ adjoining to or occupied with,” are to be taken in connexion, and tend to explain
Supposing this to be the true construction of the statute, then the case is brought within the scope of a well established rule, which is, that where there are several species of the same general crime, with more or fewer circumstances of aggravation, and subject to a gradation of punishments, it is not necessary, in the indictment, to negative those circumstances which would render it more aggravated. As in the case of larcenies with various aggravations, from the most simple upwards ; as larceny from the person, larceny in a dwellinghouse, by putting in fear, and the like. It is not necessary, in charging simple larceny, to negative the aggravating circumstances. And so of burglary, under St. 1805, c. 101, aggravated by being armed, arming in the house, assaulting any person, &c. If it is intended to charge the mitigated offence, it is sufficient to charge those facts which constitute the crime, simply omitting the circumstances which, by the statute, would aggravate the offence and increase the punishment. In such cases, the words in the statute, “ without being armed,” &c. are not so much designed to constitute a description of the offence, as to show that it is intended to distinguish it from a higher grade of offences, wnthin which it would fall, if these aggravating circumstances existed. This rule was considered and settled, and its limitations explained, in a very recent case. Commonwealth v. Squire, 1 Met. 258. In that case, it was held, that in charging a mitigated offence of arson, on one section of Rev. Sts. c. 126, it was not necessary to allege that the case was other than those mentioned in a prior section, although the section, on which the in dictment was founded, described the cases therein mentioned, as other than those of a more heinous and aggravated character mentioned in the former section.
On these grounds, the court are of opinion, that this indict
Judgment affirmed.
See also Crown Circuit Companion, (7th ed.) 232, 233. Commonwealth v Brown, 3 Rawle, 207, 211. The State v. Jesse, 3 Dev. & Bat 108.