The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1869-01-08
LEGAL INTELLIGENCE.
Opinion In n Burglary Case.

SUPREME COURT IN BANc Chief Justice
Thompson, and Judges Read. Agnew. and
This morning, in the case of Holliston. which
we noticed several days ago, the Chief Justice
gave the following interesting opinton:-
EIsstus B. Hollston VS.. the Common wealth.
Error to the Oyer and Terminer of Wayne
county. The Indictment in this case follows
The common law form of an indictment for
burglary. 1t charges that the accused with
force and arms, in the night lime, did feloni-
ously and burglariously break and enter The
slorehouse of Stinton McMullen. in the
borough of Wynents. with inteuJ the goods and
cnattels of the said Stinton McMulen to steal,
take, and carry away; and that having 30 en-
tered he did steal, take, and carry away certain
describing them the breaking in sLorehouse,
not parcel OF a dwelling-house, is not burglary
by the common law nor by any statute of This
Notwithstanding that the prisoners counsel
made motion predicated OF this objection to
the Indictment to quash IL, IL was Overruled,
and the trial was proceeded in, and the prisoner
was convicted by the jury In manner and
form as he stood indicted, and afterwards
sentenced TO two years confinement in the
peniten tiary. There being no authority for an
Indictment for burglary in breaking and enter
in i6e iS5th section OF the act OF slst Of N arch
1860 H. was urged in argument that the conVc-
tion might be sustaine ed as under the l38Lh sec.
tion of The act. This section is special aud to
cover cases not within the definition, but par
taxing of Its nature, and applies where the
breaking takes place In the day time into any
dwelling-house, shop, warehouse, store. mill,
barn or stable, Clubhouse or other building, or
with intent 10 commit felony therein. This
section seems to have been designed to punish
made. even If no felony oe actually committed.
1t is k the otfense Of burglary IN this respect;
otherwise it is quite unlike It, as 1t Is notneees-
sary that 1t should be In The night time. and in
one aspect of IL the otfsnse is complete Without
a breaking. 1t would not do to hold defeud-
in in form for burglary strictly iiaoIe
10 besentenced under the section, by changing
the averments or assuming them to be so
nhaOppd to suit the COlV VCLiOQ, In fact IL Is not
the same otfense, although IL partakes OF Its
nature; and have no doubt but II might be
Joined in the same Indictment But IL would
pe as necessary to set forth this charge so as to
bring 1t within the offense described In this sec
tion IL Is necessary to set forth the essentials
TO establish the crime of burglary. Without
defining the certainty that Is required in an in
precise in all cases as TO furnish the accused
with "the nature and cause OF the accusation
against him. The bill of rights secures this to
an accused. This could not be said to be the
case if a conviction ON an indie m mt for break
ing and entering one description of building
was sustained in regard to one not described or
susceptible of the same description We hold
that the conviction In this case was not OF the
ofiense charged in the both section of the act
nor sustainable under IL. But 1T was argued
that there Is included in this charge of burglary
a charge OF larceny. This is true; aud 1T is not
the minor offense would be sustained, But that
was not what occurred In this case. The de-
fendant was convicted In mRnuer and form
as he stood indicted; that ia, for burglary. III ad
the jury returned verdict of mot guilty OF
burglary puL guilty OF larceny" we do not
say but that, even under this Indictment, the
conviction might have been sustained. Tnis
they did not 90, and we need not discuss the
matter. There was therefore no legal oonvto-
tion OF the defendant on the first count Nor
was there upon the second; IL IL might be good
under any circumstances, and,we do not decide
this point, 10 was not good in this case. Iu sub
stance, IL charges the defendant with inctting
one Harris 10 commit the crime OF burglary In
place In which 1t could not be committed
standing as an accessory to the principal charge
which itself was not indictable as burglary, II
amOunts to nothing, and does not sustain the