Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-06-25

. L t1ClCOls
We do not believe the Legislator,
meant by the words ''the house of anoth
err" in the second section of said act Of
1866, to infiict the punishment of deatl
by hanging upon offenders who may bs
guilty of breaking into outhouses, store
houses, warehouses, etc, for the purpose
of committing larcenies. 80 ,gslE RI
4 II they did so intend, then all larcenies
and all breaking into such houses for the
purpose of committing larceny, are raised
| to capital punishment, without regard tc
the value of the property stolen or In
| tended to be stolen at such breaking. i
And the crimes of petit and grand lar,
ceny are capital offenses punishable with
death, but in the direction of the jury,
trying the offender, they may commit the
| punishment to confinement at hard labor
in the penitentiary of this State for moi
less than ten nor more than twenty lone
years. ~ $50 gs.ga.i1t CSC
We do not believe the Legislature intend
ed, by the I'd section of said statute, tc
/ produce such q radical change in the
criminal code of this State. But in view
of the existing state OF society in this
1 State at aud before the passage of said
act of 1865, and the laSlessness crime
and violence then prevailing in maay
parts of the State, and to afford the eiti-
zens more protection by day and by night
| from thieves and robbers, in their dwell
l ing houses, we believe was the induce
ment to the passage ofsaid act of 1866, and
that the Legislature meant by the word
/ the house of another the manson house
and such houses as in law were appurte-
nant to and part thereof. Having al
rived at this conclusion, after serious con-
sjderations, it remains to be seen with
what crime, if any, the prisoner is
charged in the bill of Indictment, and
whether the proof in the record sustains
the charge and warranted the verdict of
the jury, and was the charge of the court
below, to the jury, applicable to the pre-
vious case, and sustained by the proof In
the cause. The indictment charges the
offence alleged to have been committed
by the prisoner and Henry Sewell in the
language of the statute. That is, that
they feloniously broke and opened the
house of Sarah Joplin in Wilson county,
for the purpose of committing a larceny
therein and then and there feleniously
stealing and conveying away the bacon
and bucket of Sarah Joplin, etc.
l We have seen that the words house of
Sarah Joplin means her mansion house,
| including such apartments and houses, as
| in Law, ere included by the words mansion
house. And the indictment upon its face
! is good Indictment. But the proof in
/ this record discloses the fact, that the
house Of Sarah Joplin, alleged to have
been broken open, and the property stolen
therefrom, was her smoke house, contain
| ing her bacon and bucket of lard which
were stolen theFefrom. But the proof
/ does not show how, or where the smoke
house of Sarah Joplin was situated in re-
ference to her dwelling house, nor wheth-
er it was within the curtilage surrounding
her house, or in q distant enclosure. Nor
does the proof show that the smoke
house was connected with, or contribu-
tary to the dwelling house of Mrs. Joplin
and used by the family as necessary ap-
pendage to the dwelling house, only SO
far as the proof shows that she had ba-
con and lard in the smoke-house ct the
time it was broken open. While there
cCCA1lD W NC oOlIAC OOAA4tOb IL l1l0
authorities under indictments for
burglary, whether the smokehouse
can be considered part or parcel of the
mansion house, in the case of the State
VS. Bryant, Grimes l, Mott and McCord
563, Mr.. Justice Mott who livcred the
opinion of the Court says: 4 house TO
be parcel of the mansion house must be
some how connected with, or contribu-
tary to it, such as kitchen, smokehouse
or such other as is usually considered a
necessary appendage of clearinghouse.
In the case of the State VS. Henry A
Langford, Deveraux North Carolina)
R 253, Judge Henderson says: The law
throws mantle around the dwelling of
man and protects, not only the house in
which he sleeps, but also all other ap-
partment thereto, as parcel or parts there
of, from meditated harm. Thus the
kitchen, laundry, smokehouse and dairy
for they are all used as parts of one
whole, each contributary in its way, to
the comfort and conviance of the place
as mansion or dwellinghonse. These
authorities are approved by this Court in
the case of Armour VS. the State, Hum
379, by Judge Turley who delivered the
opinion of the Court, Also see Douglass
VS. the State, 6 Yerger 525 and $50. We
cannot decide from the proof in this re-
cord, whether the smokehGuse of Sarah
Joplin was within the same Enclosure of her
dwelling house, or how near to, or how
far distant, it was from her dwelling
house, or how used by her; only that she
had bacon and lard stored therein; so as to
determine the guilt of the prisoner, if this
was an indictment in form for burglary.
On Che trial in the court below, the proof
does not seem to have been directed to
the question of burglary or to the
fact whether the smoke-house was, or
was not, so connected with the dwelling
house as to form part thereof Nor in
this opinion do we mean to be understood
as intimating an opinion, in the absence
of the necessary facts, whether we would
hold the prisoner guilty under the second
section of said act of 1866, if the proofs
should show upon another trial that the
smOke-house was so situated and used, as
to be apart of the dwelling house of Mrs.
Joplin under an indictment for burglary.
We reserve the question until the facts
are disclosed. The indictment against
the prisoner and Henry Sewell. charged
them with the offence of grand larceny,
if no higher offense. And under an in
dictment for grand larceny, the jury may
find the accused guilty OF grand or petit
larceny, or no offence, according to the
proof. .I III l.-.s
If for grand larceny. they may convict
and fix the punishment in the Penitentiary
of this State, in their discretion, for as
short time as three years, or for as long
as ten years. If for petit larceny, for one
year and not exceeding five years, and re-
commend the prisoner to the mercy of
the court, which means to recommend to
the court to commute the punishment in
the Penitentiary to q fine and imprisoE-
ment in the county jail. And if the Hon.
Court below had taken this view of the
case, and had charge the law as appii-
| cable to larceny, for anything we can
know, the jury may not have deemed it
their duty to fix the term of the prisoners
punishment for the offense as long as ten
years. But it is evident from careful
reading of the charge of the court below
to the jury, that be regarded the words
broke into tho house of another, in the
81 section of the act of 1865, to mean any
house, be II mansion house, out house, or
smoke house, or any other kind of house