55 Ga. 562 | Ga. | 1876
Lead Opinion
Is a mill-house so certainly a place of business that no description of it, as such, nor any averment that it is such, is required in an indictment for burglary? It is not one of the buildings expressly named in the definition of this offense, in the Code, section 4386. There is no legislative declaration that a mill-house is a place of business, or the subject of burglary. At common law, to break and enter such a building was not burglary; nor is it burglary now by statute, unless the particular building broken and entered be a place of business. Its being a place of business is of the essence of the offense. That is the legal nexus between a mill-house and burglary. Place of business, and not mill-house, is the burglary element; but mill-house is alleged, and place of business is not.
An indictment for felony, involving as it does either the loss of life or the loss of liberty, with degradation of character, should charge every material fact with full legal certainty. If not framed in the language of the Code, it should, at least, be in language as clear and explicit. The Code, in defining burglary, uses the words “ place of business.” Provided the substantial meaning of these words be alleged, a considerable deviation from the words themselves would be admissible. For instance, place of occupation, place of pursuit, place of
The chief justice and myself are of opinion that the judgment should be arrested; and as this will entirely dispose of the present indictment, the motion for new trial has not been, and need not be, considered.
Judgment reversed.
Dissenting Opinion
dissenting.
The indictment charges substantially that the defendant broke and entered into a mill-house, with intent then and there to steal, and wrongfully and fraudulently take and carry away certain tobacco, corn and tallow, naming the lot of tobacco and tallow, and the number of bushels of corn, and the value of each. It alleged the ownership of the mill-house, and of the property, and stated that the property was then and there in the same mill-house. A motion was made to arrest the judgment on the ground that the indictment was insufficient; the court overruled the motion, and this is the error assigned.
The main question is, does the word mill-house, ex vi termini, mean a place of business, so that the jury can understand it? or is it necessary to add to the word mill-house, that it is a place of business ? My brethren think it necessary to add those words. I do not. The language of the statute is
The Code declares that “every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of the Code, or so plainly that the nahore of the offense charged may be easily understood by the jury.” Now, though mill-house be not the word used in the Code, yet I honestly think that the jury could easily understand that it was a place of business, and the corn and tallow being in it, that it was then a place where the business of grinding corn was carried on. If, then, this section of our Code, 4628, means anything, it means that this indictment is “sufficiently technical and correct,” and “shall be deemed” so by the courts. In accordance with the legislative will, I deem it so, and so pronounce it.
Again, section 4623 of our Code declares that “no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offense charged in such indictment.” How the omission to call a mill-house where corn and tallow are stored, a place of business, can be construed to