118 Ky. 67 | Ky. Ct. App. | 1904
Opinion of the court by
Affirming.
Appellants, Thomas Mann and Edward Morris, were indicted and convicted of burglary, their punishment being fixed at confinement in [he penitentiary for ten years. The proof shows that they, in company with one Charles Sanders, went from Maysville in a buggy abo,ut ten miles to the house of John B. Farrow, or near it, and there tied their horse, and after entering the house through the window, in the night time, proceeded to rob Farrow by taking some money that was in his pants pocket. Some noise they made waked up Mrs. Farrow, who roused her husband, and thereupon the defendants or one of them, shot Farrow in the arm, and also in the back. The same grand jury that found the indictment for burglary also found an indictment against them for shooting Farrow, and on this last' indictment they were tried and convicted. Mann appealed to this court, and that judgment was affirmed. Mann v. Commonwealth, 25 R., 1964; ■79 S. W., 280. When arraigned on the charge of burglary, they pleaded the conviction under the indictment for the shooting of Farrow, in bar of the proceeding.
While the indictment on the charge of burglary contains some unnecessary averments as to the larceny committed by them after they entered the house, it is a charge only of burglary, the allegations’ as to the stealing of the money by putting Farrow in fear and shooting him being apparently only added to illustrate the felonious intent with which the defendants entered the house as charged in the indictment. The -burglary was complete when the felonious entry was made, and the defendants might have been indicted and con
Burglary is defined as “the breaking and entering in the night of another’s dwelling house, with intent to commit a felony therein.” 1 Bishop on Criminal Law, sec. 559. “If a man. in the night time breaks into a dwelling house, intending to commit therein some act which in the law is felony, he is guilty of burglary, whether he succeeds in doing what he meant or not.” 1 Bishop on Criminal Law, sec. 437. It is insisted, however, for appellants that the defendants entered the house to- steal the money, and that the entry of the house, the stealing of the money, and the shooting of Farrow were all one transaction, done in pursuance of one intent, and that out of it the Commonwealth can not carve two offenses. In support of this view we are referred to a number of authorities. Thus in Fisher v. Commonwealth, 64 Ky., 211; 89 Am. Dec., 620, where the defendant by the same act and with the same intent took a horse, wagon, and harness, it was held that an acquittal of stealing the horse was a bar to an indictment for the stealing of the wagon and harness, and the rule was applied that out of one transaction committed with the same intent two offenses could not be carved. The same rule was applied in Triplett v. Commonwealth, 84 Ky., 193; 1 S. W., 84, where an acquittal of the offense of burglary was held a bar to a prosecution for a larceny forming part of the
In Herera v. State (Tex. Or. App.) 84 S. W., 948, it was held by the Texas court that a conviction for assault with intent to kill was a bar to an indictment for robbery committed in the same transaction. But none of these cases are precisely in point here. It is misleading to say that the shooting of Farrow and the burglarious entry of the house were committed in the same transaction, in the sense in which this term is used by the authorities. See 1 Bishop on ■Criminal Law, sec. 1060. Thus in the Fisher case the one act of the defendant was the taking of the horse, wagon, and harness; but here there were two acts of the defendant —the burglarious entry of the house and the shooting of Farrow in the house after this act had terminated ¡These are no more one transaction than if the defendants had successively shot two different persons in the same difficulty. The shooting of Farrow could not have been set out in a second part of the indictment for burglary, or joined with that charge. The robbery of the person by put
In Teat v. State, 24 Am. Rep., 708, two men were wounded mortally by two almost simultaneous shots fired by the defendant and another, lying in ambush.. It was held that a conviction for the killing of one of the men was not a bar to an indictment for the killing of the other. In State v. Nash, 41 Am. Rep., 472, the defendant fired twice in quick succession upon a crowd of persons, wounding one at the first shot and another at the second. It was held that a conviction for the wounding of the fi'rst was not a bar to an indictment for the wounding of the second. In Jones v. State (Miss.) 6 South, 231, 14 Am. St. Rep., 570, the defendant wounded, two men in the same difficulty. The conviction for one was held no bar for a prosecution for the other. To same effect are McCoy v. State, 46 Ark., 141; Augustine v. State (Tex. Cr. App.) 52 S. W., 77; Winn v. State, 82 Wis., 571, 52 N. W., 775; Greenwood v. State, 64 Ind., 250; Ashton v. State, 31 Tex. Cr. R., 482, 21 S. W., 48; Samuels v. State, 25 Tex. App., 538, 8 S. W., 656. Other cases are also collected in a note to State v. Nash, 41 Am. Rep., 475. Referring to this line of cases, Mr. Bishop, in the last edition of his work on Criminal Law, sec. 1061, says: “Obviously, there is a difference between one volition and one trans
Judgment affirmed.
.Whole court sitting.