Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-06-25
SUPREME COURT DECISIONS
Nashville, December. Term, 1862
Thomas HI. CoIdweII. Attorney
General and Reporter.

At the May term of the Circuit Cour
of Wilson county, the grand jury of saiC
county returned into said court bill o.
Indictment against the plaintiff in e-rol
and Henry Sewell, Endorsed by their fore
man, q true bill, which is in the following
words and figures:
estate of Tennessee, Wilson County,
Circuit Court May term, 1S6S-The
grand Jurors OF the State of Tennessee,
upon their oaths present that Henry Pal.
Iaer, colored, and Henry Sewell, colored,
on the 18th day of March, 1868, in the
county of Wilson, did felonious break
open the house of one Sarah Joplin for
the purpose of committing larceny
therein, and then and there feloniously
stealing and conveying away sixteen
pieces of bacon of the value of twenty
dollars, and one bucket of the value of
ono dollar, the personal property of the
said Sarah Joplin, against the peace and
dignity of the State. \
'TSignedl JAMES NJ BRIRN,
' tt attorney General" ,
At the June term, 1859, of said court,
on the application of the plaintiff in error,
a severance on the trial of himself and his
co-defendant in the indictment was per-
mitted by the court, and upon the plea
of not guilty by the plaintiff in error, I'M
der the charge of the court, the jury rem
dered verdict of guilty against him in
manner and form as charged in the In
dictment, and for such, his offense, the
jury said he should undergo confinement
In the ponitentiary of this State ten years.
Motions for new trial and arrest of
judgment were made by the defendant
in the court below, and severally over
ruled, and the Judgment of the law pro-
nounced upon the finding of the jury.
Thereupon, the defendant rendered his
bill Of exceptions TO the court, and ap-
peaied in error to this court.
The indictment is predicated upon the
ID section OF the act of the General As
sembly of this State, passed May II,
1855, which section reads as follows:
Be 1t enacted, That whoever shall
teloniously break open the house of
another, for the purpose of committing
larceny or felony therein, shall, on con-
viction thereof, suffer death by hanging
provided, the jury before whom the
offender is tried and convicted may, if
they think proper, commute the pun
ishment for the offense to imprison-
ment in the penitentiary for the
period of not less than ten, nor more than
twenty-one years. 1t is insisted by the
Attorney General for the State, that on
the night of the 18th of March, 1868, in
the county of Wilson, the plaintiff in
error brake open the smokehouse of Mrs.
Sarah Joplin, and stole and covered there
from, about three hundred pounds of bs-
con and bucket containing q quantity of
lard, the personal property of the said Sa-
rAh Joplin, and for such his offense, he is
guilty under the provisions of said section
of said act of 1866.
The plaintiff in error, by his counsel,
insists that the Legislature by the use of
the words: "Thst whoever shall feloni-
ous!y break open the house of another,
for the purpose of committing a larceny
or robbery therein" did not mean the
smOkehouse or storehouse of another, but
meant to attach the death penalty to the
offiense of burglary under section 4, 6T2
of the Code, by breaking and entering the
mansion house, by night, with intent to
commit felony, or as the case may be,
for breaking or entering the mansion
house by day, with the intent to commit
9 felony under section 1878 of the Code;
and that the indictment in this cause can
not be sustained under either OF said sec
tions of the Code, because, if under
the former, the Indictment must aver
the offense to have been committed in the
night time, and, if under the latter, it
must aver that the offense was committed
in the day time. This is the first time, so
far as we are advised, it has been incum-
bent upon this court, to construe the
meaning of the said ID section of said act
OF 1865.
It is highly penal in its enactment, and
comprehensive in its provisions, If the
Legislature meant by the words, break
into the house Of another TOR the l1ur-
pose Of committing q larceny, or rob
berry therein, to include any house of a.
other.
1t would include smokehouses, store
houses, warehouses, barns, stables, etc.
They are, in the literal sense of the word,
houses, but not the houses of others in
the common acceptation and meaning of
the word house.
When we speak of the house of anoth-
or, we mean his mansion house wherein
he lives and sleeps.
If the Legislature meant any house Of
cn0ther wherein larceny or robbery
could be committcd,s then ali larccnies,
without regard to grade, either grand or
petit, are raised to capital otfense, if
committed, by day or night, by breaking
open and stealing from any smokehouse,
sprlnghouse, chickenhouse, storehouse,
or any building, or tenement, falling
under the denomination of a house.
We wish neither to extend nor
abridge the intention of the Legislature
in the statute, but to cOmprehended their
intention and execute the law as twas in
tended by the legislative department of
tne government, i is a general rule that
the words Of statute, if of common Use,
are 10 be taken in their natural and ordinary
sense, without any forced or subtle con-
struciion TO limit or extend their mean
ing; and the real intention, when ascer-
tanned and viii always prevail over the
literal sense OF the terms used. The
State VS. the GAINESVILLE & r. T. Pike Co.
2 Sueed IS; Kent Com. 461-12.
The words of q statute, il of common
use, are to be taken in their natural and
ordinary Specification and import, and if
technical words are used, they are to be
taken lie c tschnicsl sense, unless it clear
w appears from the context, or other
parts of the statute, that the words were
intended TO be applied differently from
their ordinary, or their legal dccGOta-
fi0n, l Kent Com. 462. Taking the rules
q Interpretation just announced for our
guidance, We think the Legislature must
by the words, !the house of another, ="
lis mansion, or dwelling house, and house,
committed theI with, US in law, is part
and psrcel of the MANSION house. That
said words used in the statute are employed
In their common 6, ,fUinary acceptation
aud meaning.
That is, when - AJAX of our house,
or neighbours house, tie house of anoth-
er, we mean our dwelling house, our
neighbours dwelling house, the dwelling
of another, the ediice wherein he and
his family lives, as notwithstanding
it from his stOrehouse, his warehouse,