44 Mich. 305 | Mich. | 1880
The plaintiffs were prosecuted by the same information for a joint attempt at burglary, and1 were convicted. The burglary was set forth as at common law, but the pleader saw fit to add that Harris was armed and "Williams not armed. As we understand the record, it is now contended that, by this means,, the information assumed to implead the two as having 'jointly attempted to commit what, if the attempt had been carried out, must have been a separate and distinct crime by each, and would not have been a single joint offense on the part of both ; and the argument is dyawn from the regulations in the statute which limit the penalty in case a burglar is armed, etc., to twenty years' imprisonment, and in other cases to fifteen years.
The two provisions, it is said, make two different crimes, and the information, in setting up that one party was armed and the other not, imputed an attempt by each to perpetrate a crime different from that alleged to have been attempted by the other. The point suggests several considerations into which we need not enter. It may be a question whether,
The various breakings resembling burglary which have been declared criminal by the legislature, are distinguishable from the ancient offense of the common law. They owe their definition to the statute, and the statute must be consulted to ascertain their ingredients. When they are charged they must be set forth in substance, as in the statute, with all descriptive incidents, whether negative or otherwise. Koster v. People 8 Mich. 431; Byrnes v. People 37 Mich. 515. Recurring to the objection in the record, and its failure on its own theory is evident. It construes Comp. L. § 7561 as constituting a distinct crime composed of the facts specified therein, and denoted by being described as in the statute; and, proceeding on this foundation, the claim is put forth that when the information said that Harris was armed, it charged him with an attempt to commit the offense in that section, whilst Williams was accused of an attempt to com
The statement that one was armed and the other not, standing alone and without the other facts belonging with it to constitute the aggravated case described by the statute, is wholly destitute of force. It adds nothing to the essential charge and detracts nothing from it. It is mere surplusage, and the legal effect of the information is to charge the parties with a joint attempt to commit a burglary punishable by not to exceed fifteen years’ imprisonment.
It is next objected that the information is bad for want of due certainty in showing that something was done as commencement of a burglary. The averment is that they “ feloniously and burglariously to break and enter the said dwelling house, did insert between the upper and under sash of an outside window of said dwelling -house a certain instrument, to wit: a knife.” We think this is a sufficient allegation to sustain the judgment. It embodies a charge of the beginning of a breaking burglariously with intent to effect a burglarious entry. The specific intent is set up, and along with it and in pursuance of it the direct application of a kind of force which common knowledge recognizes as employable for such ends.
Nothing further is necessary. The judgment is affirmed.