| S.C. | Jul 22, 1882
The opinion of the court was delivered by
The defendant having been convicted of burglary, moved the circuit judge for a new trial, upon the ground that the indictment alleged that the house which was broken into was “ the dwelling house of Mrs. Mary Ladd,” whereas it should have alleged the house to be that of her husband, A. W. Ladd. “ The testimony of Mrs. Ladd and of her husband, which was not contradicted, showed that Mrs. Ladd had a.separate estate; that she had leased the premises occupied by them ; that the goods in the house belonged to her, and that her husband acted as her agent.” The circuit judge refused the motion, whereupon this appeal was taken, which presents the single question, whether the allegation of ownership of the house was sufficient.
This question, as is said by the circuit judge, is one of novel impression in this State, and therefore we are not bound to follow the technical rules which formerly embarrassed the courts in determining questions of this character, under the principles of the common law. Indeed an examination of the various cases in which such questions have arisen would show that it would be quite difficult, if not impossible, to reconcile them, or to extract from them any well-defined rule. As is said in 2 Bish. Crim. Prac. § 109: “ It is not easy to lay down, in a single sentence, a rule by which the ownership is, within the principles pertaining to this department of our law, to be determined. Probably in some cases the ownership may be laid in one person or another, at the election of the pleader. Thus where a gardener lived in a house of his master, quite
So in 2 East P. C. 499, it is said : “ It is necessary to ascertain to whom the mansion belongs, and to state that with accuracy in the indictment. And here it is to be lamented that the same rule does not prevail in this case as in arson, which is considered as an offence against the actual possessor, by whatever title he may hold possession. But in burglary the rule is much more complex, the ownership being neither referable altogether to the legal title nor to the possession, but partaking sometimes of one, sometimes of the other, as well as of both. If the rule by which to ascertain this ownership may be compressed, with sufficient discrimination, into a small compass, I should say, generally, that where the legal title to the whole mansion remains in the same person, there, if he inhabit it, either by himself, his family or servants, or even by his guests, the indictment must lay the offence to be committed against his mansion.”
So far as we can perceive, there are only two reasons for requiring the ownership of the house to be stated in an indictment for burglary: 1st. For the purpose of showing on the record that the house alleged to have been broken into, was not the dwelling house of the accused, inasmuch as one cannot commit the offence of burglary by breaking into his own house. 2d. For the purpose of so identifying the of-fence, as to protect the accused from a second prosecution for the same offence. Hence when the ownership is alleged to be in a person who is not the accused, and that allegation is proved upon the trial, the reasons of this requirement seem to be fully met.
In this case the allegation of ownership has been shown by the evidence to be strictly true ; that the wife not only had the legal title, but that she actually resided in the house at the time; and the fact that it may, at the same time, have been the residence of her husband as well as of herself, cannot affect
It is true that burglary is an offence against the habitation •of some other person, but it is very clear that it is not essential that such habitation shall be alleged to be that of the person who :actually occupies — inhabits—the house at the time it is broken into, for there are quite a number of cases in which indictments alleging ownership in the master have been sustained, where the house was, at the time, not occupied by the master, but by •some other person as his seiwant or agent. In Rex v. Atthea, Ry. & Mood. C. C. 399, cited in 2 Arch. Cr. Pl. & Prac. 296, it was held- that a house, the joint property of partners in ■trade, and in which their business was carried on, might be described as the dwelling house of all the partners though only ■one of them resided in it.
Some of the old English cases went very far in cases of married women, but that was because the common law ignored the separate existence of a married woman, so far as property rights were concerned, and regarded the wife as nothing more than the servant of the husband. Hence in Rex v. French, Russ. & Ry. 491, where a dwelling house in which a'wife lived separate and apart from her husband, the rent of which was paid out of her separate estate in the hands of trustees, was broken into, the court held that the indictment properly laid the ownership of the house in the husband, although he had never been in it, saying “ it was the dwelling house of some one ; it was not that of the trustees, for they had nothing to do with it; it was not the wife’s, because, at law, she could have no property ; it could then only be the husband’s.” It is very manifest that this case and others of a like character cannot now be regarded as authority, based as they are upon the incapacity of a
The case of Snyder v. The People, 26 Mich. 106, much relied on by the appellant, we do not think is in point. In that case the husband was indicted for arson in burning the dwelling house of his wife, which was owned by her as her separate property, though it was occupied by them jointly as a residence. The court held that the indictment would not lie, inasmuch as it could not be said that- the husband had violated the statute making it a penal offence'wilfully and maliciously to burn, in the night time, “ the dmellmg of (mother,” the house burned being his dwelling place, and not “ the dwelling of another.” The court used this language: “ The property is hers alone, but the residence is equally his; the estate is in her, but the dwelling house, the donvus, is that of both.” Care was taken, however, to reserve the question as to what would have been the result if it had appeared that the husband was not actually occupying the house, as a residence, when it was burned; the court saying : “ There is much reason for holding that the wife’s dwelling house can be considered that of the husband, only while he makes it such in fact, and that there is no such legal identity as can preclude her house being considered, in legal proceedings against him, as the dwelling of ‘ another,’ when it is no longer his abode.”
In the case now before the court it was conceded that the wife was the legal owner of the premises, and as long as they were jointly occupied by herself and husband as their dwelling, we say in the language of Judge Cooley, supra: “ The property is hers alone, but the residence is equally his ; the estate is in her, but the dwelling house, the domus, is that of both.” Hence in this case an allegation of ownership in either husband or wife would have been sufficient, inasmuch as either allegation would have been sustained by the evidence and would have been sufficient to show upon the record that the accused was charged with breaking into the dwelling house of another, and would have so identified the offence as to protect him from another charge for the same offence.
The judgment of this court is that the judgment of the Circuit Court be affirmed.