18 S.C. 137 | S.C. | 1882
The opinion of the court was delivered by
George Evans was convicted of burglary and sentenced to three years in the penitentiary under an indictment in the following terms: “That George Evans,, late of the county and State aforesaid, on February 7th, 1882; with force and arms, at Abbeville court house, in the county-
Upon being arraigned for sentence, the defendant made a motion in arrest of judgment upon the following grounds: 1. “ That the indictment was fatally defective in not alleging that the gin-house, the subject of the burglary, was within two hundred yards of the dwelling-house of the prosecutor. 2. That the indictment was fatally defective in not alleging that the said gin-house was an ‘ appurtenant ’ to the dwelling-house of the prosecutor.” The motion was refused. He now appeals to this ■ court, and renews the motion upon the grounds stated.
It appears that the evidence brought the case within the definition of burglary under the statute, so far as the subject of it was concerned, for the gin-house was shown to be within eighty yards of the dwelling-house of the prosecutor. The ■question, however, is not as to the facts proved, but as to the sufficiency of the allegations in the indictment. “An indictment is the complaint of the State against the accused. It ■should charge some offense cognizable by the court, and this offense, whatever it may be, should be clearly and distinctly set forth. The crime charged should be described with certainty, for no latitude of intention will be allowed to include anything more than is expressed.” State v. McKettrick, 14 S. C. 353. Nor can the evidence supplement the statements of the indictment. “ Every indictment must contain and set forth all the necessary ingredients of an offense, and no omission, in such ■statements, can be supplied by innuendo or evidence.” State v. Henderson, 1 Rich. 184. “ In setting out an offense against a ■statute, the defendant must be brought within all the material words of the statute, and nothing can be taken by intendment.” State v. O’Bannon, 1 Bailey 144.
This statute was intended to enlarge the field within which burglary could be committed, but in doing so it required two things as essentially necessary to constitute the new statutory offense; the out-house in which the offense is committed must be within two hundred yards of the dwelling-house. and appurtenant to it. Neither of those ingredients of crime were alleged in this indictment, and, therefore, it was not good under the statute. The indictment containing no such allegations, proof upon these points was inadmissible.
But it is insisted-that the terms of the indictment, even if not full enough under the statute, are sufficient to sustain a conviction for burglary at common law, inasmuch as it charges the■pffense to have been committed “ in a gin-house situate within the curtilage of the dwelling-house,” which fulfills the definition of burglary at common law, viz., “ the breaking and entering the dwelling-house of another, &c., and the term dwelling-house includes all out-houses contiguous to the dwelling and parcel thereof, if within the curtilage.” State v. Sampson, 12 S. C. 567.
This court has held that the act of 1866, re-enacted in the. general statutes, enlarged the limits within which burglary might be committed, but did not repeal the common law offense, .and also that it was not repealed by the act of 1878, which increased its punishment. State v. Branham, 13 S. C. 389.
Assuming that the common law offense still exists unimpaired as to out-houses within the curtilage, as it did prior to the act off 1866, and this could be considered as an indictment under it, the indictment does not charge that the gin-house was “ contiguous ” to and “ parcel ” of the dwelling-house, only that it “ was-situate within the curtilage of the dwelling-house,” making it necessary to institute the inquiry, whether a gin-house eighty yards from the dwelling-house, and used for ginning cotton and sheltering stock, was within the curtilage, a term which, although often defined, seems still to lack certainty. It was long ago-held in this State that “ a house to be parcel of the mansion-house, must be somehow connected with or* contributory to it,, such as a kitchen, smoke-house or such other as is usually considered as a necessary appendage of a dwelling-house. It cannot embrace a store, blacksmith shop, or any other building separate from it and appropriated to another and a distinct useN State v. Ginns, 1 N. & McC. 585.
It is not necessary in this case, however, to make any such-inquiry. The case was tried as one under the statute. JudgeAldrich reports that “it was an indictment under the statutory ■provision punishing as burglary the breaking and entering any house within two hundred yards of the dwelling-house and appurtenant thereto,” and the punishment imposed — three years in the penitentiary — shows conclusively that he so regarded it j for if the defendant had been convicted of burglary at the common law, the punishment, under the statute of 1878, could not.
The judgment of this court is that the judgment of the Circuit Court be reversed and the judgment arrested.