| W. Va. | Sep 29, 1883
On the 3.d day of May, 1882, in the circuit court of Summers county the following indictment was found against the defendant :
“ The jurors of the State of West Yirginia in and for the*767 body of the county of Summers and now attending the said coart, upon their oaths present, that Goodall Meadows on the 28th day of March, 1882, in the county aforesaid, a certain store-house, adjoining to, and occupied with, the dwelling-house of one M. I). Tomkies, there situate, in .the night-time, feloniously did break and .enter, with the intent the goods and chattels of the said M. I). Tomkies, in the said storehouse then and there being feloniously to steal, take and carry away, and one hoe of. the value of one dollar, ten yards of ribbon of the value of two dollars, two knives of the value of one dollar, of the goods and chattels of the said M. T>. Tomkins in the said store-house, then and there being found, then and there feloniously did steal, take and carry away, against the peace and dignity of the State.”
The prisoner moved to quash the indictment, which motion was overruled; and thereupon he pleaded not guilty. The case was tried before a jury and a verdict rendered of guilty as charged in the indictment. A motion to set aside the verdict was overruled, and judgment entered for two years imprisonment in the penitentiary.
To this judgment the prisoner obtained a writ of error.
There are quite a number of errors assigned, but in our view7 of the case it is proper to consider but one. That assignment is, that the indictment should have been quashed, because it does not charge the offence to have been .committed “burglariously.” If the offence charged is burglary, it was absolutely necessary to use the word “ burglariously ” in such charge; but it was not necessary, if the charge was for statutory house-breaking. (Wharton’s Or. PI. & Pr., § 265, and cases cited.)
In Tully v. Commonwealth, 4 Metc. 357, it was held, that in an indictment under the Revised Statutes of, Massachusetts charging the defendant with breaking and entering a dwelling-house in the night-time with intent to commit a felony, it is not necessary to aver, that the offence was committed “burglarously,” for the reason, as stated b}7 Shaw7 C. J. after quoting the statute : “It is to be observed, that in neither of these sections of the Revised Statutes * * .had the Legislature used the' term burglary or burglarious. Each section embraces all the ingredients necessary to constitute the crime
In Pitcher v. The People, 16 Mich. 142" court="Mich." date_filed="1867-10-22" href="https://app.midpage.ai/document/pitcher-v-people-6633949?utm_source=webapp" opinion_id="6633949">16 Mich. 142 the indictment charged a burglary, using the words “ feloniously and burg-lariously,” but the prisoner insisted, that the proof did not show he was guilty of burglary, it appearing from the proof that he entered a “barn,” which was a part of the out-buildings used and occupied by the family for domestic purposes. Cooley, Judge, who delivered the opinion of the court said: “It is argued, that the act ivas not burglary, because the offence as described in the statute, * * is confined to breaking and entering a dwelling-house in the night-time with intent, &c., * * and the word dwelling-house is so used throughoul the chapter where these sections occur, as to show the legislative intent, that it. should include only the dwelling-house proper, and not the adjoining out-buildings used therewith for domestic purposes (and which would be included by the designation at common law) inasmuch as all such buildings are distinctively enumerated in other sections by which punishment of unlawful acts therein are provided for. The statutory definition of burglary in a dwelling house is the same as that of the common law; and we must infer, that the statute designs simply to provide for the punishment of the common-law offence, unless we discover some reason for believing, that the Legislature employed the definition in some new and restricted sense. No other rea
The indictment in this case was found under section 11 of chapter 145 ot the Code, and not as supposed by counsel under the Acts of 1882, as the last named act did not go into effect until July 27, 1882, and the indictment was found May 3, 1882. The whole statute-law with regard to burglary and house-breaking was contained in sections 11, 12 and 13 of said chapter 145, and reads.as follows: “11. Any person who shall be guilty of burglary shall be confined in the penitentiary not less than five nor more than ten years. If a person break and enter the house of another in the night time, with intent to commit larceny, he shall be deemed guilty of burglary, though the thing stolen, or intended to be stolen be of less value than twenty dollars. “12. If a person
It will thus be clearly seen, that section 11 prescribes the punishment for burglary, and declares, that, if the breaking and entering the house in the night-time, be to commit larceny, although the thing stolen or intended to be stolen was of less value than twenty dollars, although the larceny would not be a felony, yet he should be deemed guilty of burglary. Section 12 in the first clause thereof provides for the punishment of entering in the night-time without breaking, or of breaking and entering in the day-time a dwelling-house, or any of the other houses, the breaking and entering of which in the night-time with intent to commit felony would at common law constitute burglary, to-wit, an out-house adjoining a dwelling-house, or occupied therewith ; and the last clause of ■ the section clearly provides for the punishment of the entering or the breaking and entering of other houses, &c., not within the curtilage, and consequently not adjoining to or occupied with a dwelling-house; consequently the entering in the night-time or breaking and entering either in the day or night of a store-house not within the curtilage would not be burglary; and the indictment, charging the offence need not contain the word “bui’glariously.” But if the store-house was connected and occupied with a dwelling-house, and a person broke and entered it in the night-time with intent to commit a felony or a larceny of even less than twenty dollars, it would be burglary, and the indictment charging the offence must necessarily aver that it was done “burglar-iously.” Had that word been used in this indictment in
Reversed. Remanded.