50 Ga. 258 | Ga. | 1873
Section xxvii. punishes as a felony, by imprisonment for not less than two nor more than five years, the offense of privately stealing from or in any house.
Section xxviii. punishes entering a dwelling house, store, shop, warehouse, or other house or building, with intent to steal, but failing, by detection or prevention, with imprisonment from one to three years.
Section xxix. punishes breaking the house, with intent to steal, and failing, from detection or prevention, etc., one to three years ; but makes putting the inmates in fear an aggravation, and in such case, enlarges the penalty to from two to five years.
Section xxx. punishes breaking and entering any house— not a dwelling house — (which was burglary,) with intent to steal, but failing, from detection, etc., by imprisonment from two to four years; and also punishes breaking and entering any house (not a dwelling house) and stealing, with imprisonment from three to five years — making violence, threat or menace, alarm, or putting in fear, an aggravation, so as that idie penalty is not less than four years.
Plainly here are several grades of the offense of larceny from the house. 1st. “ Privately ” stealing from any house—
The Act of 1866 reduced all these grades of “ larceny from the house” to misdemeanors. The Act of February 20th, 1873, raises the first and lowest grade, “privately stealing” in any house, to a felony, but says nothing of the other grades— where there is a breaking, or where there is force, menace and alarm — where it is not “private.” We may add that these provisions of the Code of 1834 are carried, word for word, into the Code of 1863, and into Irwin’s Code, except that in Irwin’s Code, section 4351, there is, in the second clause, a clerical error or misprint of or for and. We do not think this misprint changes the law. The Convention of 1868 adopted the laws, and only recognized Irwin’s Code as an embodiment of them, and did not make a printer’s mistake or a copyist’s error the law of the land. We think the Act of February 20th, 1873, making “'privately stealing” in any house, a felony, does not affect the other grades of this offense. True, it seems absurd to say that one grade should be raised and not the others, but it is not for the Courts to make law, however reasonable it may be. We hope the Legislature may, at its next session, correct this anomaly, as well as some others which have come from the sweeping reduction of felonies to misdemeanors by the Act of 1866.
Judgment affirmed.