46 Ga. 212 | Ga. | 1872
Lead Opinion
It is contended that the direction of the Court to the jury was wrong, for several reasons. 1st. It is said that the jury may always find the attempt instead of the act. And this is true if the evidence justifies it. But the evidence here is that the crime of burglary, to-wit, breaking and entering with intent to steal, is complete. At any rate it is not required that one shall steal to make burglary. So that here was no attempt to commit burglary. 2d. It is said the jury might, under the indictment, have found a verdict of guilty of burglary in the day time. The mistake here is, that it is as-
It is said again that the jury might have found the defendant guilty of larceny from the house. This is very plausible. Larceny from the house may be, in this State, breaking a house with intent to steal, or entering a house with intent to steal, and it is very true that burglary, to-wit, breaking and entering with intent to steal, does, in the very npture of things, include breaking with intent to steal, or entering with intent to steal. But there is an ingredient in larceny from the house that does not exist in burglary. In burglary, if one break and enter with intent to steal, he is guilty of the offense. But he is not guilty of larceny from the house if, after breaking or entering with intent to steal, he, of his own motion, change that intent. To make out the crime of larceny from the house, when there is no theft or taking, there must be a breaking or entering with intent to steal, and the offender must be prevented by detection: Code, section 4347, construed with 4349 and 4350. The crime of actual “larceny from the house” is imputed, because it exists in intent, and only does not exist in fact because of its having been prevented by another. But burglary, to-wit, breaking and entering with intent to steal, is complete as soon as the breaking and entering is complete, with the intent to steal. No amount of after repentance will help it.
If the jury in this case were satisfied that the prisoner broke and entered with intent to steal, he was guilty; and if they thought he had only entered with intent to steal, he was not guilty. It is true, the proof shows that he was detected and prevented, and it may be that this made him, in fact, guilty of larceny from the house, if he did not break in.
As to the verdict, there is plenty of evidence to sustain it. The window is proven pretty clearly to have been down. There is, at any rate, sufficient proof of it to save the verdict from being illegal, as contrary to the evidence, and we affirm the judgment. It may be added, also, that the prisoner, even on the hypothesis that if he was not guilty of burglary might have been found guilty of something else, got a better charge than he was entitled to and has no reason to complain, since the Judge told the jury that if he was not guilty of burglary he was to be found not guilty generally.
Judgment affirmed.
Concurrence Opinion
concurring.
The defendant was indicted for the offense of burglary. The Court charged the jury that, under the evidence in the case, they could not find the defendant guilty of any other offense than that charged in the indictment, that they must find him guilty of burglary in the night time, (that being the offense charged in the indictment,) or not guilty. The evidence was quite clear that the defendant broke and entered the store-house in the night time, where valuable goods were contained and stored, with intent to commit a larceny, but was prevented from carrying such intention into effect after he had so broke and entered the store-house in the night time. Burglary, as defined by the Code, is the breaking and entering into the dwelling, mansion, or store-house, or other place of business of another, where valuable goods, wares, produce or any other articles of value are contained or stored, with intent to commit a felony or larceny, and may be committed in the day or night. The punishment is diffei’ent when the offense is committed in the night than when com
Any person breaking and entering any house or building, (other than a dwelling house or its appurtenances) with intent to steal, but who is detected, and prevented from carrying such intention into effect, shall be punished as prescribed in section 4245 of the Code. It is claimed that the 4351st section applies as well to cases of burglary as to larceny from the house. It might be a sufficient reply to say, that tire lawmaking power has not so applied it, and consequently, the Courts cannot do so. Burglary is an offense against the habitations of persons. Larceny from the house is an offense relative to property, and the 4351st section of the Code applies to the latter class of offenses, and not to the former; it was not intended to apply to the offense of burglary. The distinction between burglary and larceny from the house is, that in the one case there must be a breaking and entering into the dwelling, mansion, or store house, or other place of business of another, where valuable goods, wares, produce, or any other article of value are contained or stored, with intent to commit a felony or larceny. When the defendant had broke and entered into any house of the aforesaid description in the night time, with intent to commit a larceny, the offense of burglary was complete, and he might be punished therefor as prescribed by the Code, notwithstanding he may have been detected, and prevented from carrying such intention into effect. But in the case of an indictment for larceny from the house, although the defendant may have broke and entered any house or building (other than a dwelling house or its appurtenances) with intent to steal, but who is detected and prevented from carrying such intention into effect, shall be punished as prescribed by the 4245th section of the Code. This distinction, as to the punishment of the defendant in the two classes of offenses enumerated when he is