Gambar halaman
PDF
ePub

houses, the entry from the street being by the common doorway. The inside of the house consisted of a shop and parlor, from whence the goods were taken, and a staircase leading to a room over the shop in which there was bedding, but it was not fitted up. The prosecutor took it about two years before the offense was committed, and made several alterations in it, intending to have married and lived in it; but continued unmarried, and his mother living in a house next door but one, he slept every night at her house. Every morning he went to his house, transacted his business in the shop or parlor, and dined and entertained his friends and passed the whole day there, considering it as his only home. When he first bought the house he had a tenant, who quitted it soon afterwards, and since that time no person had slept in it.

The question reserved for the opinion of the judges was, whether this sort of inhabiting was sufficient to make the house the prosecutor's dwelling-house. In Easter term, April 28th, 1806, at a meeting of all the judges (except Lord ELLENBOROUGH) the conviction was held wrong, the house not being a dwelling

house.

§ 371. words.1

§ 372. § 373.

"Building, Ship or Vessel." -- A corn crib is not within these

Outhouse. A district school-house is not an "outhouse." 2

-

Outbuildings must be Necessary to Dwelling-House. --Thus it is not burglary to break the door of a store, situate within three feet of a dwelling, and enclosed in the same yard.3 "Burglary," said the court in this case, “is a breaking and entering the mansion house of another in the night time, with an intent to commit some felony within the same, whether such intent be executed or not. It is almost the only case where crime in the highest degree is not dependent on the consummation of the intent, in almost all other offenses there is a locus penetentiæ. But the law throws her mantle around the dwelling of a man, because it is the place of his repose, and protects not only the house in which he sleeps, but also all others appurtenant thereto, as parcel or parts thereof, from meditated harm; thus the kitchen, the laundry, the meat or smoke-house and dairy are within its protection; for they are all used as parts of one whole, each contributing in its way, to the comfort and convenience of the place as a mansion or dwelling. They are used with that view, and that alone; and it may be admitted that all houses contiguous to the dwelling are prima facie of that description. But when it is proved that they are used for other purposes, for labor, as a workshop, for vending goods, as a store-house, this destroys the presumption. It then appears that they are there for purposes unconnected with the actual dwelling-house, and do not render it more comfortable or convenient as a dwelliing, — in short, that they are not a parcel or part thereof, but are used for other and distinct purposes, the house, as a dwelling is equally comfortable and convenient without them as with them, their contiguity to the dwelling may afford convenience or comfort to the occupant, as a mechanic, a laborer, or a shop-keeper, but none to him as an housekeeper. These principles, I think, are fully recognized in the case of the King

1 Wood v. State, 18 Fla. 967 (1882).

2 State v. Bailey, 10 Conn. 144 (1834). A store-room is not a "store-house." Hagar v. State, 35 Ohio St. 268 (1879). "Stillhouse"

construed in Thalls v. State, 21 Ohio St. 233 (1871).

3 State v. Langford, 1 Dev. 253 (1827).

v. Eggington,1 and spoken of in East, Starkie and Russell with approbation. In fact, without some such rule, we should be at sea without a rudder, for shall we take distance as our guide? Must the off-house be within one foot, ten, or a hundred feet? Or, as some say, a bow's shot? Those who speak of distance ascertain it only by its being reasonable; and what may be reasonable to the mind of one man, may not be to that of another. Shall we take the curtilage as a guide? It may be asked to what extent? A small yard or a large one, inclosed or uninclosed? for writers do not precisely agree as to what constitutes the curtilage. I think, therefore, that it is unsafe to extend the signification of the word dwelling-house, further than to embrace the dwelling itself, and such houses as are used as part or parcel thereof - such as are used with the dwelling, considered as a dwelling-house, and tending to render it convenient and comfortable to the dweller as an house-keeper. If it be asked on the other side what is to be done when the kitchen or pantry is placed at a great distance from the dwelling, whether it is to be protected as part thereof? it is answered that it must then lose its protection-not because it is no longer part of the dwelling, but on the score of carelessness or indifference; as the dwelling-house of a man is not protected who leaves his doors and windows open — or who places his property in a situation where he knows it will be stolen. For the criminal law protects men against those acts only from which they can not protect themselves, and leaves the careless and negligent to their civil remedy."

A smoke house thirty-five steps from the house is not appurtenant to it.2 "Adjoining to or occupied with a dwelling-house," is construed in People v.

Nolan.3

$ 374.

Burglary

-

"Shop.”—A shop in the English statute must have been a shop for the sale of goods and not a workshop such as a carpenter's shop or a blacksmith's shop.1

$375.

6

Intent Must be to Commit a Felony. - The intent must be to commit a felony. Breaking and entering a dwelling-house with intent to cut off the ear of an inhabitant is not burglary. Adultery not being a felony, to break into a house with intent to commit adultery there is not burglary; nor if the intent be to have connection with a woman there by fraud and not by force ® . that as we have seen not being rape."

Therefore a servant entrusted with the key of a man's front door who enters the house with the key in the night with intent to steal is guilty of burglarybut he is not if he enters to go to sleep there, but afterwards forms the design of stealing.10

§ 376.

Proof Insufficient. The proof to convict of burglary was held in the Supreme Court insufficient in several cases."

1 2 Bos. & Pul. 508.

2 State v. Jake, 2 Winst. 80 (1864).

3 22 Mich. 229 (1871).

4 R. v. Sanders, 9 C. & P. 79 (1839). And see Crawford v. State, 44 Ala. 382 (1870). As to what not a "store." See Moore v. People, 47 Mich. 639 (1882); People v. Fairchild, 48 Mich. 31 (1882).

State v. Ryan, 12 Nev. 401 (1877).

• Com. v. Newell, 7 Mass. 245 (1810).
State v. Cooper, 16 Vt. 550 (1844).

8 Wyatt v. State, 2 Swan, 394 (1852).
Ante, vol. III, p. 381.

10 Lowder v. State, 63 Ala. 143 (1879).
11 Zollicoffer v. State, 16 Tex. (App.) 312
(1884); Ross v. State, 16 Tex. (App.) 554
(1884); People v. Gordon, ante, p. 877.

[blocks in formation]

1. Under a Statute Against Embezzlement, which provides that "whoever embez⚫ zles, etc., ** * shall be deemed guilty of larceny," an indictment charging simply an ordinary larceny is insufficient, and no conviction of an offense under the statute can lawfully be had.

2. An Indictment, Under such a Statute, must set out the facts constituting the embezzlement, and then aver that in that manner the defendant committed the larceny.

3. Larceny at common law is not included within the statutes against embezzlement.

Mr. Justice SCHOLFIELD, delivered the opinion of the court.

It is not claimed by the State, that the defendant is otherwise guilty than under the seventy-fourth section of the Criminal Code, entitled "Embezzlement," which is as follows: "Whoever embezzles, or fraudulently converts to his own use, or secretes with intent to embezzle, or fraudulently converts to his own use, money, goods, or property delivered to him, which may be the subject of larceny, or any part thereof, shall be deemed guilty of larceny."

The indictment is for larceny, simply, as at common law.

The uniform construction of similar acts, both in this country and in England is, "that the indictment must set out the acts of embezzlement and then aver that so the defendant committed the larceny.'

1

The defendant's fiduciary character, which is the distinguishing feature between embezzlement and larceny, must be specially averred.2 And this rule, instead of being changed, is expressly recognized by section eighty-two of the Criminal Code,3 which provides, that in indict

12 Bish. Cr. Pr., sec. 281; 2 Whart. Cr. L. (ed. of 1841), 281, 282, 283; 3 Waterman's Archb. on Pr., Pl. & Ev. in Cr. Cas. 446, 1, 2, 3, 4, 5, 6, and notes.

2 Commonwealth v. Simpson, 9 Metc. 13; People v. Cohen, 8 Cal. 42; Commonwealth v. Smart, 6 Gray, 15; Commonwealth v.

Wyman, 8 Metc. 247; Commonwealth v.
Merryfield, 4 Id. 468; People v. Tryon, 4
Mich. 665; People v. Allen, 5 Denio, 76;
Rex v. Johnson, 3 M. & S. 539; Rex. v.
Creighton, Russ. & Ry. 62.

3 R. L. 1874, p. 364.

ments in cases under the statute relating to embezzlements, "it shall be sufficient to allege generally in the indictment an embezzlement, fraudulent conversion, or taking with such intent, of funds of such person, bank, incorporated company, etc., to a certain value or amount, without specifying any particulars of such embezzlement."

2

We are referred, however, by the Attorney-General, to Welch v. People, and Stinson v. People, as settling the law of this State that evidence of an embezzlement will authorize a conviction for larceny. This is a misapprehension as to the effect of what was decided in those cases.

The convictions there were for larcenies, as at common law, and no question was raised or discussed under the statute relating to embezzlements, and it was held in both cases, the evidence authorized the jury in finding that the defendant, in obtaining possession of the property, in the first instance did so with a felonious intent. The distinction between larceny and obtaining goods under false pretenses, was the turning point in each case, and it was thus pointed out in Stinson's Case "If the owner of goods alleged to have been stolen, parts with both the possession and the title to the goods, to the alleged thief, then neither the taking, nor the conversion is felonious. It can but amount to a fraud; it is obtaining goods under false pretenses. If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back, and make the taking and conversion a larceny, if the goods were obtained with that intent."

But the section of the Criminal Code quoted, relates to a class of cases which were not larceny at common law. It is said by eminent writers on criminal law, that the statutes in relation to embezzlement, "were passed solely and exclusively to provide for cases which larceny at common law did not include. Hence, nothing that was larceny at common law, is larceny under the embezzlement statutes; and nothing that is larceny under the embezzlement statutes is larceny at common law." 3

Here the defendant sold a town or city lot for the prosecutor, and under his instructions previously given, it was defendant's duty to loan the money at interest, on good security, for the prosecutor; but, instead of complying with these instructions, he lost the money at gaming. The prosecutor never had the money in his possession at any

1 17 Ill. 339.

2 42 Id. 397.

32 Whart's. Cr. L. (7th ed.) 1905.

time, and, therefore, at common law the offense could not have been larceny.1

The evidence not being sufficient to sustain the conviction for larceny, the judgment must be reversed.

[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]

2.

[Dears. & B. 600.]

In the English Court for Crown Cases Reserved, 1858.

1. An Agent is not Necessarily a "Servant" within the statute as to embezzlement. Case in Judgment. - Certain manure manufacturers engaged W., who kept a saloon at B. to get orders which they supplied from their stores. He was called agent for the B. district, and was to collect the money, pay it over at once and render a weekly account. Subsequently the manufacturers stored large quantities of manure in B. in places rented by W., the rent being repaid to him by his employers. W. then supplied the manure from these stores. He was paid a small salary and commission. Having appropriated money received from customers, and returned their names as persons not having paid, W. was indicted and convicted of embezzlement. Held, that the conviction was wrong, as he was not a "servant" of the manufacturers within the statute.

The prisoner was convicted of embezzlement on facts as in above syllabus, but his case was reserved for this court. It was argued on 27th April, 1858 before POLLOCK, C. B., WIGHTMAN, J., WILLES, J., BRAMWELL, B., and BYLES, J.

Hardinge Giffard (Horatio Lloyd with him) appeared for the Crown, and McIntyre for the prisoner.

McIntyre for the prisoner. I submit that the prisoner was not a servant within the meaning of the statute. The evidence rather shows that he was a factor. To have been a servant the prisoner must have been bound to obey the commands of his employers, which he clearly was

not.

The prisoner took the stores, and although he was afterwards reimbursed by the prosecutors, the stores were under his control, and from these stores he supplied the goods.

The goods were supplied to him by the prosecutors with whom he opened an account, and he supplied those goods to whom he liked. He was not bound to give any definite amount of time or labor; nor was he bound, as a servant is, to obey any particular order. He had other

1 2 Whart's. Cr. L. (7th ed.), secs. 1830, a (p.), 1846, b (g.)

« SebelumnyaLanjutkan »