87 Ky. 129 | Ky. Ct. App. | 1888
delivered the opinion op the court.
The grand jury of Livingston county returned into court an indictment against the appellant, William Webb, charging him with the felonious taking from a warehouse property of value, committed as follows: “ The said William Webb, in the county of Living
The accused having been convicted under the first indictment and sent to the penitentiary for three years, the jury under the present indictment doubled the period, and sent him for six years. The indictment is based on section 4 of article 6, chapter 29, General Statutes, that provides: “If any person shall feloniously, in the night or day, break any warehouse, storehouse, office, shop or room in a steam, wharf or other boat, whether such place be or be not a depository for goods, * * * with intent to steal, or shall feloniously take therefrom or destroy any goods, wares, or merchandise, or other thing of value, whether the owner or other person be or not in such house, office, room or shop, he shall be confined in the peni
The gravamen of the offense under this statute is,, the breaking with an intent to steal, or feloniously taking therefrom property of value. The mere taking from a warehouse the..property of another, with a felonious intent, is not the offense created and punished by this statute. In such a case the offense would be either grand larceny or a misdemeanor, to-be determined by the value of the property stolen. In this case the felony charged is the felonious taking from the warehouse of Davis tobacco of the value of forty cents, and the offense, if proven, being that of petty larceny, it was error to charge the jury, or to adjudge from the facts alleged in the indictment that the offense was a felony, punishable by confinement in the State prison.
A statute will be found on page 424 of General Statutes, [chapter 29, article 11, section 4, punishing any person for stealing money, goods or chattels,. of the value of four dollars or upwards (now changed to ten dollars), either from the person of any one, or from his house, without violence or putting in fear, by confinement in the State prison not less than two. nor more than five years. It is plain, therefore, that the Legislature never intended to make the taking of personal property from a house, although with the intent to steal, a felony, if the value of the property was such as constituted the offense petit larceny.
The judgment below is, therefore, reversed,, and remanded, with directions to award a new trial, and for proceedings consistent with this opinion.