State v. Chambers

6 Ala. 855 | Ala. | 1844

ORMOND, J

The statute under which this indictment is framed, is as follows: “Every person who shall enter any dwelling house, store house, &c. and therein commit the crime of larceny, and be thereof convicted, shall be punished by imprisonment in the penitentiary, not less than three, nor more than six years.”

The intention of this law was, to protect property under the sanction of the dwelling house or other depository mentioned in the act by making it more penal than ordinary larceny. To constitute the offence, there must be an entry, and we think it cannot be doubted that this entry must be against the consent of the owner, unless,the crime be meditated at the time of such permissive entry.

The decisions under the English statutes, cited by the Attorney General, have no application here. These acts do not require an entry as a constituent of the offence, and were evidently designed to protect the owner, not only against strangers, or such as were not entitled to access to the house, but also against the inmates of the house as servants and apprentices. Our act is evidently framed upon the supposition, that protection to property thus circumstanced, is only required against those who enter the dwelling house without the consent of the owner, or who obtain such consent with the design of committing the larceny. The entry, therefore, is an essential ingredient, of the offence, and the court erred in instructing the jury to the contrary.

Let the judgment be reversed, and the cause remanded, to await a new trial of the prisoner, or until he be otherwise discharged by due course of law.