Point v. State

37 Ala. 148 | Ala. | 1861

STONE, J.

We are not able to perceive any misnomer in the present case. The pronunciation Af the two names is substantially the same, and we think the doctrine of idem sonans must be held to apply.—Petrie v. Woodworth, 3 Caines’ Rep. 219; Aaron v. The State, at the present term ; Whar. Am. Cr. Law, -258, and authorities cited.

[2.] The question, whether or ..not the alleged larceny was committed in a dwelling-house, is not presented by the present record. We .are not informed that the bill of exceptions contains all.the evidence; .and that which is set out tends to prove, that the present building was applied to some of the»uses to which dwelling-houses are applied. Whether a room, occupied only as a sleeping apartment, is a “dwelling-house,” within section 3170 of the Code, we need not inquire, as that question is hot presented by the record before us.

Section-8170 .of'-the Code .is a clear departure -from our old statute, .which was construed in Chambers' case, 6 Ala. 855. Its language is, “any person, whq-commits, larceny in any dwelling-house, storedrouse,” ,'&c. — Code, % 3170. Under this--statute, it is manifest that ajrerson, who is in a dwelling-house by invitation, may --therein commit the offense which it was.designedTojmuish. The provisions of this section are very much like .those of 32 Anne, (2 East’s Cr. Law, 644,) under which ¡it was ruled, that “the property stolen, must be such as is usually under the protection of the house.” This clearly indicates what the-legislature deemed the aggravating feature of the statute.. It is not the fact that a dwelling-house is-broken or entered, which constitutes the statutory crime. The sanctity which the place throws over property which is under its protection, magnifies t-he offense, and constitutes it a felony, .irrespective of the .value of the property stolen. — 2 East’s Cr. Law, 644-5 ; Rex v. Taylor, 1 Russ. & Ry. 417.

The, charge asked was properly refused, and the judgment of the,city, court,is .affirmed.