Lewis v. State

16 Conn. 32 | Conn. | 1843

Hinman, J.

At the superior court, in New-London county, September term, 1841, the plaintiff in error was convicted of the crime of burglary; and it being a second conviction for the same offence, he was sentenced to confinement in the state prison, for the term of six years.

The information, on which the conviction was had, does not charge the crime to have been committed in the night season, nor does it contain any allegation of the hour when the offence was committed, nor any other allegation from which it appears to have been in the night season.

This is a fatal defect; and the judgment must, consequently, be reversed. It is laid down in 3 Chitt. Cr. L. p. 859. “That it is not only necessary to state a day and year, but also an hour about which the offence was committed; in order that it may appear to the court, to be at a time when there could be no day light remaining.” And again, it is said, on the same page, “both the breaking and entering must be charged to have taken place in the night, or there is no charge of burglary;" and 1 Hale 549. is referred to, in support of these positions. The same doctrine is laid down in 2 Russell on Crimes, 36. And in Waddington’s case, reported in 2 East’s P. C. 513. the indictment alleged the fact to have been committed in the night, but did not state any hour when it was done. Gould, J. directed the prisoner to be found guilty of larceny only; and said, “that as the rule now established was, that a burglary could not be committed during twilight, it was therefore necessary to specify the hour, in order that it may appear to have been done between the twilight of the evening and that of the morning.”

This being the well settled law, it is useless to enquire, whether the term “burglariously” necessarily implies that it was done in the night, or whether it does not. That it is so understood in modern professional language, is doubtless true; yet it is said in Jacob’s L. Dict. tit. Burglary, that originally the term signified only the robbery of a dwelling-house, without any reference to the time when it was committed.

In this opinion the other Judges concurred.

Judgment reversed.