53 Mass. 240 | Mass. | 1847
1. The plaintiffs in error insist that the judgment rendered against them ought to be reversed, because the indictment was defective in not alleging that the office, in which the burglary is stated to have been committed, was “ adjoining to a dwelling-house,” nor that it was “ not adjoining to a dwelling-house.” Some countenance was given to such an objection, in Commonwealth v. Tuck, 20 Pick. 356. But the later case of Devoe v. The Commonwealth, 3 Met. 316, more directly raised the point; and the principles there settled are entirely decisive of this question, unless a change of the law has been subsequently made by St. 1839, c. 31. In Devoe’s case, the form of the indictment was open to the same objection; but after a full argument and mature consideration, the court affirmed the judgment and sustained the indictment. But it is said that the St. of 1839, c. 31, has essentially changed the law on this subject, and created the necessity for this averment. If it has done so, it is by reason of a positive enactment prescribing the punishment for burglary in an office or shop “ adjoining to a dwelling-house.” The words of this statute are these: “ Every' person who shall break and enter, in the night time, any office, shop or warehouse, adjoining to, or occupied with, a dwelling-house with intent to commit the crime of murder, rape, robbery, larceny, or any other felony, shall be punished by imprisonment in the state prison not more than twenty years.”
The general principle is, that where, by statute or statutes, there is a gradation of offences of the same species — as in the various degrees of punishment annexed to the offence of malicious burning of buildings, or in the various grades of the offence of larceny —it is not necessary to set forth a negative
It was said in argument, that when the punishment prescribed for different offences differs, the omission to allege the aggravating circumstances shows the offence charged to be the minor offence, and thus renders it certain for which the party is to be put on his trial; but when both offences are punishable alike, then an indictment in the form of the present one leaves it uncertain as to which of the offences the party is to be put on trial.
If, by force of a single statute, it had been provided that burglariously entering an office, either adjoining to a dwelling-house or not thus adjoining, should be punished by imprisonment for a term of years, I apprehend no objection would be urged, that an indictment was defective in not specifying whether the office was or was not adjoining to a dwelling-house. Can it make any material difference, that the legislature has established the same provision by the combined effect of the two different statutes enacted at different
I am aware that the case of The King v. Marshall, 1 Mood. Cr. Cases, 158, would seem directly to sanction the position taken for the plaintiffs in error in the present case. But that case is at variance with our practice in this respect, and with the principles we have recognized in reference to the statutes creating a gradation of offences. The doctrine of
2. It is then contended that this judgment ought to be reversed, because the indictment is imperfect in not setting forth, with technical accuracy, the offence of larceny which is alleged to have been committed in connexion with the act of breaking and entering the office. To this objection it is a sufficient answer, that the charge of an actual larceny is not necessary to constitute the principal offence, namely, the burglary ; that the mere intent to commit larceny would be sufficient; that the further allegation of an actual larceny was only to be taken in aid of the charge of the intent; and that, if a conviction ensued, the punishment would be for th
It is then said that the specific charge of an actual larceny being found in the indictment, and a general verdict of guilty, and sentence thereon, the plaintiffs in error have been punished for the larceny, and that the indictment ought, therefore, to have been so framed as to enable them to plead this conviction in bar of a subsequent prosecution for the larceny. To this it may be replied, that such objection of informality to an indictment upon which a sentence had been passed, would be no objection to setting up such former conviction in bar. Commonwealth v. Loud, 3 Met. 328.
In this view of the case, it becomes unnecessary to considei particularly the point, whether a larceny was technically charged here, or whether, if this had been the offence charged in the indictment, it would, for the cause assigned, have been held defective in form. The allegation as to the larceny is, “ and divers bank bills, amounting in the whole to the sum of seventeen thousand dollars, and of the value of seventeen thousand dollars, of the goods, chattels and moneys of said corporation, in the office aforesaid,” &c. The objection is taken to the want of particularity in the statement of the number of bank bills, their denomination, <fcc. For the rea sons already stated, we are not called upon to decide this question. But we incline to admit great latitude in the description of property of this nature, and in a larceny of this extent, and under such circumstances as the present. It would clearly have been sufficient to state any number of bank bills, however large; and the party could not object to a variance of the proof. It would really be of no practical benefit to a defendant to have the number of bills inserted, although it must be conceded to be more in accordance wit!
Judgment affirmed.
