68 Wis. 416 | Wis. | 1887
There is undisputed testimony on the part of the state to the effect that Saturday, July 25, 1885, the plaintiff in error was stopping at a hotel in Black River Falls, having his name registered as W. FI. Eldredge, and a room assigned him opposite thereto. He had then been there about three days. In the afternoon of the day named he had a box or chest taken from the depot to his room, weighing about 150 pounds. No evidence was given as to what was in it. About three o’clock in the afternoon of the same day he arranged with the local express agent for the sending of a box to Chicago, then at the hotel, and represented by him as weighing about 225 pounds. By his prearrangement, the box was brought to the depot just in time for the 7:50 n. M. Chicago train, and was shipped in the express car thereon by the local agent, as directed. Soon after the starting of the train, there seems to have been a suspicion as to the co'ntents of the box. This suspicion was increased as telegrams were received at different stations from Black River Falls respecting the box. Finally, being convinced by such dispatches that there was a man in the box, the train-men telegraphed forward to Elroy to secure the presence of an officer on the approach of the train to make the arrest. On reaching Elroy,dn the night, this box in the express car was opened, and the plaintiff in error was found therein, with a revolver, billy, razor, knife, rope, gimlet, and
The motion in arrest of judgment was based upon the dissimilarity in the language employed in the second count in the information, under which the plaintiff in error was convicted, and the statute under which he was prosecuted.
1. That statute provides, in effect, that “ any person who shall enter in the night time without breaking, or shall break ancl enter in the day time-any . . . railroad freight car, or passenger car, with intent to commit the crime of murder, rape, robbery, larceny, or other felony, shall be punished by imprisonment in the state prison not more than three years, nor less than one,” etc. Sec. 4410, R. S. Under this statute, such entry with such intent in the night time, even without breaking, is sufficient to constitute such offense. Rolland v. Comm. 82 Pa. St. 325. But the allegation is that he “did break and enter with intent,” etc. Had the allegation been that he “ did break and enter in the night time,” with such intent, then the qase would.have come under the preceding section. That would have been for an offense of a higher grade, and could only have been committed in the nighttime. Manifestly-there was no intention of the pleader to prosecute under that section. His evident purpose was to charge the offense prescribed in the
2. The question recurs whether the proofs show that there was a breaking in fact, within the meaning of the statute. Certainly not in the sense of picking a lock, or opening it with a key, or lifting a latch, or severing or mutilating the door, or doing violence to .any portion of the car. On the contrary, the box was placed in the expi’ess car with the knowledge, and even by the assistance, of those in charge of the car. But it was not a passenger car, and the plaintiff in error was in no sense a passenger. The railroad company was a common carrier of passengers as well as freight. But the express company was exclusively a common carrier
So it has frequently been held in this country that, “ to obtain admission to a dwelling-house at night, with the intent to commit a felony, by means of artifice or fraud or upon a pretense of business or social intercourse, is a constructive breaking, and will sustain an indictment charging a burglary by breaking and entering.” Johnston v. Comm. 85 Pa. St. 54, and 82 Pa. St. 306; State v. Wilson, 1 N. J. Law, 439, 1 Am. Dec. 216; State v. McCall, 4 Ala. 643, 39 Am. Dec. 314; Bish. Stat. Crimes, § 312, and cases there cited. The same was held in Ohio under a statute against “forcibly” breaking and entering. Ducher v. State, 18 Ohio, 308. But it is claimed that in this state the common-law doctrine of constructive breaking has no application to a case of this kind, and in fact is superseded by statute, except in so far as it is re-affirmed. Thus: “ Any unlawful entry of a dwelling-house or other building with intent to commit a felony, shall he deemed, a breaking and entering of such dwelling-house or other building, within the meaning of the last four sections.” Sec. 4411, E. S. This section merely establishes a rule of evidence whereby the scope of constructive breaking is enlarged so as to take in “ any unlawful entry of a dwelling-house or other building with intent to commit a felony.” See State v. Kane, 63 Wis. 262. It in no way narrows the scope of constructive breaking, as understood at common law, but merely enlarges it in the particulars named. In all other respects such constructive breaking signifies the same as at common law. It necessarily follows that as the word “ break,” used in sec. 4410, had obtained a fixed and definite meaning at
3. It is said that the second count does not charge the offense to have been committed in any place prohibited by law; “ that the freight and express car of the American Express Company ” mentioned therein does not describe a “ railroad freight car or passenger car,” mentioned in sec. 4410, E. S. One of the definitions^of a car given by Webster is: “A carriage for running on the rails of a railway,” illustrated by the picture of a “ railway car,” with these two words beneath it. Every “ express car ” must be a “ freight car,” and, to make it certain, the charge is, “ the freight and express car; ” but it does not follow that every “ railroad freight car ” is an “ express car.” Both courts and juries may take judicial notice of what everybody knows respecting the common incidents of railway and express carriage. Downey v. Hendrie, 46 Mich. 498; Queen v. Ruscoe, 8 Adol. & E. 386. Among these is the fact that an express carjis a railroad car. We think the information sufficiently definite in this regard, especially after verdict. Queen v. Stroulger, L. E. 17 Q. B. Div. 327.
4. It is said that there was no proof that the car mentioned was the property of the American Express Company. But the question was collateral, or at least incidental, to the real issue involved, and- absolute proof of ownership was not essential. The proof of the exclusive possession, occupancy, and control of the car by the express company, therefore, was sufficient proof of ownership. Ducher v.
5. During the argument of the case the district attorney animadverted to the jury upon the fact that the prisoner had not been sworn, to which his counsel objected; whereupon the court ruled: “It is probably competent to show that the offense has not been denied.” The language of the district attorney is not preserved in the bill of exceptions. It merely appears that he animadverted upon the fact of» his not being sworn; and the court thereupon, in effect, indicated that he was at liberty to argue to the jury that the offense had not been denied. It was a fact necessarily known to the jury that the prisoner had not been sworn. The undisputed evidence included the prisoner’s voluntary admissions of guilt. Under such circumstances, and in the absence of just what was said by the district attorney, and the occasion of it, we must presume that something occurred or was said which rendered such remark proper. Williams v. State, 61 Wis. 290; Hoffmann v. State, 65 Wis. 46; Hinton v. Cream City P. Co. 65 Wis. 331-333; Gallinger v. Lake Shore Traffic Co. 67 Wis. 529.
Other exceptions are sufficiently considered in what has already been said.
By the Court.— The judgment of the circuit court is affirmed.