State v. WardState v. Ward
- Reporters:
- Before:
- Foster
‘Upon the trial of this case to the jury fK public prosecutor offered evidence to prove, and claime it did prove, that the defendant еntered the house o± *493Gantz in the night season, through a window in the second story, about fifteen feet from the ground, which window was raised about six inches and supported in this position by an ;j oil-can, with an intent to steal the goods of one Davis then in ‘i the room; and that he unlocked the door of Davis’s room and the outer door of the house, for the purpose of making his escape therefrom. The Attorney for the State asked the court to chargе the jury, as matter of law, that if they found the above facts proved, beyоnd a reasonable doubt, they would support a verdict of guilty of the chаrge contained in the information. The court so instructed the jury, and they\ returned a verdict of guilty. The motion for a new trial \ raises the question, was this instruction сorrect ?
We think it was. If each and every of the acts constituting a crimе are committed, and all the evils consequent on, the crime are produced, the precise order in which the acts ’ are done cannot be material. Now burglary is the breaking and entering the house of another in the night season with an intent to commit a felony. The jury have found that, couрled with the guilty intent, the accused committed every ’ act going to make up this crime. The accused stood not on’ the doing of these acts, nor on the order of doing them, except so far forth as was convenient аnd necessary to accomplish his guilty purpose. That this offence is burglаry we can have no doubt.
It is true that doubts have been expressed whethеr a breaking, for the purpose of escape, constituted burglary. Lord Hale and Chief Justice Trevor expressed such doubts on the trial of Elizabеth Clark at the Old Bailey in 1707. The offence was punishable with death, and it was crеditable to the hearts of judges to make fine distinctions and insist on technicаlities in favor of human life, especially when the offender was a woman. The law however was then generally considered well settled, and so thе statute of 12 Anne was soon after passed as a declaratory act. After stating the law to have been doubted, it was “ declared and enаcted, that if any person shall enter into the mansion or dwelling house of аnother, by day or by night, without breaking the same, with *494an intent to commit felony; or being in such house shall commit any felony, and shall, in the night time, break the said house to get out of the same, such person is and shall be adjudged to be guilty of burglary, and shall be ousted of the benefit of clergy in the same manner as if such person had broke and entered the said house in the night time with an intent to commit burglary there.” Stat. 12 Anne, c. 7.
We incline to the opinion that the facts found to have been cоmmitted by the accused constituted the crime of burglary at common law, аnd that the statute of Anne, above quoted, should be regarded simply as declaratory of that law.
If the statute be viewed in another aspect, as in alteration and amendment of the common law, it may still perliaps bе considered a part of our law by adoption, though not of binding force as a statute. Statutes of this character, passed by Parliament before our declaration of independence, have been adopted by our sister states as part of their common law. . Commonwealth v. Leach, 1 Mass., 59; Commonwealth v. Knowlton, 2 Mass., 534; Pemble v. Clifford, 2 McCord, 81; Sackett v. Sackett, 8 Pick., 309; Boynton v. Rees, 9 Pick., 528; Commonwealth v. Chapman, 13 Metcalf, 68. In this state, in 1787, our Superior Court recognized and adopted the statute of 9 Anne, altering and amending the common law relating to writs of mandamus. Strong’s case, Kirby, 345.
We are satisfied with the charge of the court, and advise no new trial.
In this opinion the other judges concurred; except Pardee, J., who, having tried the case in the court below, did not sit.