82 Pa. 306 | Pa. | 1876
delivered the opinion of the court, October 23d 1876.
This cause was contested step by step in the court below, and pressed with marked zeal and ability here. The Commonwealth was met at the threshold of its case with a motion to quash the array of grand and petit jurors, and also to quash the indictment. Both motions were overruled, and this action of the court below forms the subject of the first and second specifications of error. We will consider briefly the reasons assigned in support of these motions respectively. It was urged that there was irregularity in regard to the custody of the jury-wheel, the sealing of the same, and in the manner in which the keys were kept. It appears from the evidence taken in support of the challenge to the array, that the wheel was deposited by the jury commissioners in the vault of the county commissioners’ office, after being first placed in a chest, and the chest locked. The clerk of the county commissioners was also the clerk of the jury commissioners, and was duly sworn. It was therefore in the actual charge of their own sworn officer. After the drawing of the jurors for the February Term, the sheriff and one at least of the jury commissioners sealed the wheel. The other jury commissioner was not sworn. The sheriff says: “I have a
We do not see much force in the further objection that the minimum number of an Oyer and Terminer panel, viz.: forty-eight, were not in point of fact summoned. One of the names drawn from the wheel was returned by the sheriff “not found,” and one as “ dead.” This of course reduced the panel to that extent. Sect. 113 of the Act of 14th of April 1834, Pamph. L. 39, requiring forty-eight jurors to be summoned and returned as petit jurors in the Oyer and Terminer, must be read in connection with sects. 118,119 and 125 of said act. Sect. 113 refers to the venire, and the manifest meaning of it is that the venire shall require that at least forty-eight jurors shall be drawn. Sect. 118 provides that so
What has been said applies as well to the motion to quash the indictment as to the • challenge to the array. In support of the former motion, there was, however, the additional reason that two of the grand jurors were stockholders in the National Bank of Chambersburg. This was no ground to quash the indictment. It might have been a ground of challenge as to the particular jurors. It is well settled that a grand juror may be challenged for cause. This is the current of the English authorities. It was allowed in this country in the trial of Col. Burr, and in this state in an Oyer and Terminer case tried before Tilghman, C. J., and Breokin-RiDfiE, J., in 1814, 2 Browne 323.
We see no merit in the third specification. The witness, John
There was error in the answer to the defendants’ second point, embraced in the tenth specification, but it was in their favor. They have, therefore, no cause of complaint. We might well stop here, but as this case must go back for another trial, we deem it our duty to indicate the principles upon which this branch of it should be ruled. It is established by numerous authorities that there may be a constructive breaking. This may be done by an act in fraudem legis, or by fraud not carried on under cloak of legal process. Accordingly it has been held, that where thieves came to a house in the night-time, with intent to commit a robbery, and knocking at ‘ the door, pretending to have business with the owner, and being by such means let in, robbed him, they were guilty of burglary: Le Molt’s Case, Kel. 42; 2 Hawk. P. C. 131; 1 Russell on Crimes 793; 1 Hale P. C. 552; 2 Arch. Cr. Law 279. The evidence for the Commonwealth upon this point was that the defendants (plaintiffs in error) came to-the door of Mr. Messersmith’s house, after dark, on the evening of the 24th of March last. The witness Kindline says: “ I opened the door, and Rolland and another man were outside. * * * I did not know the other man. Rolland asked whether Mr. Messersmith was in. I said he was not, that he had just walked out. . He said he would like to see Messersmith; that he had a friend from New York who wanted to transact a little business with him. He introduced his friend as Mr. Johnston. * * * He said ‘ Good evening. Perhaps we will call later in the evening.’ ” They did call about twenty minutes afterwards, rang the bell and were admitted by Mr. Kindline. Messersmith had returned, and they were shown into his room. Rolland introduced Johnston as the man of whom he had previously been speaking to Messersmith in regard to the purchase of a farm. Some other conversation
The learned judge was right in refusing to affirm the prisoners’ third point. But it was error, as has already been stated, to say that there “ is not such evidence of fraud or trick practised by the the prisoners to gain admission into the house as will constitute a breaking.” It was also error to say, in the same sentence, that • “ the entry of the prisoners may have been a burglarious entry without breaking.” There is no such thing as burglary in Pennsylvania without a breaking, either actual or constructive. We shall refer to this more fully when we come'to the last assignment of error.
^ The answer to the fourth point was error. The mere unlatching 4 or breaking of a door in an attempt to escape is not burglary in this Instate. We do not think it was ever so at common law. It is true ] it was at one time asserted to be so by Lord Bacon and other eminent English lawyers, but it was denied by authority of equal weight; notably by Sir Mathew Hale, by Lord Holt and by Trevor, C. J., in Clark’s Case, 2 East P. C. Ch. 15; in 1 Hale 554, where it is said: “ If a man enter in the night-time by the doors open, with the intent to steal, and is pursued, whereby he opens another door to make his escape, this, I think, is not burglary, for fregit et exivit non fregit et intravit.” And see Black. Com., vol. 4, p. 223. This difference of opinion ’among eminent jurists in England led to the passage of the Statute of 12 Anne, which, after referring to the doubt on the subject, provides, that a breaking out of a dwelling-house by a burglar in the night-time, in an attempt to escape, was a sufficient breaking to sustain a conviction. This statute was subsequently repealed by the statute of 7 & 8 Geo. 4, ch. 27, and reenacted by 7 & 8. Geo. 4, ch. 29. The passage of the Act of 12 Anne is strong evidence that it was not the common law. No such | statute was ever enacted in Pennsylvania, and I am not aware of ! any decision recognising such a rule here. In the fifth report of the English commissioners on criminal law, we find the following
The thirteenth and fourteenth specifications raise a question that ' is not free from difficulty. It was not error to refuse to affirm the defendant’s seventh point for the reason that two of the counts of the indictment charge the offence of burglary at common law, to wit: the breaking and entering a dwelling-house in the night-time with the intent to commit a felony. But the case requires from us a construction of the 135th section of the Act of 31st March 1860, Pamph. L. 415, and of the second section of the Act of 22d April 1863, Pamph. L. 531. The first-named act provides that “if any person shall by night wilfully and maliciously break or enter into any dwelling-house * * * with an intent to commit any felony whatever, whether the felonious intent be executed or not, the person so offending shall, on conviction, be deemed guilty of felonious burglary,” &c. It will be seen that, by the terms of the act, an entry without breaking, in the night-time, constitutes felonious burglary. Then came the Act of 1863, before mentioned, which provides that, “ if any person shall in the day-time break and enter any dwelling-house, * * * or wilfully and maliciously, either by day or by night, with or without breaking, enter the same with intent to commit any felony therein, the person so offending shall be guilty of felony,” &c. I have given so much of each act as relates to dwelling-houses. The learned judge of the court below held that the Act of 1863 was “ intended to punish and provide for the breaking and entering a dwelling-house by day-time, and of other buildings by day or by night. Any other reading of this section makes it cover what was burglary at common law, which was not the legislative intention.” The Act of 1863 is an\ exact
We are of opinion that as to the 136th section, the word “or,” must be read “and,” and that the words “with or ” in the second section of the Act of 22d April 1863, were not intended to apply to dwelling-houses. This construction makes the legislation referred, to a consistent and harmonious whole.
We are not surprised, in view of the wording of the 135th section of the Act of 1860, that the learned judge of the court below instructed the jury in answer to the defendant’s fifth point, that there could be a conviction under the counts which charged an entry without breaking. But under the construction which we have placed upon said section, it was error.
The judgment is reversed and set aside, and the record remitted to the Oyer and Terminer for another trial. And it is further ordered that the inspectors and warden of the Eastern Penitentiary, at the city of Philadelphia, surrender the bodies of Ralph L. Rolland and B. Johnston, the plaintiffs in error, to the high sheriff of. Franklin county for custody and trial in due course of law.