The Hawaiian gazette., 1873-05-21
VOL. IX,---NO. 49,
Supreme COurt-In Banco. April
Term, 1873.
The HING rs. Asina et al
CD, HAKrwErL AND wIDExASE, j.


The prisoners were tried at the last term O.
this Court before Hartwell, J., and found guilty
Of the charges alleged in tbs indictment, and
thereupon their counsel moved in arrest o
Judgment, alleging as grounds therefor,
]. That the indictment is double in charging
two distinct offences having different penalties.
II. That the indictment is uncertain, as it is
impossible to say on which section of Chapter
XIV Of the Penal Code it is based, and there
fore the Court cannot pronounce sentence.
Ill That the charge should have been under
Section Is of the XvIth Chapter of the Penal
Code.
This motion was denied, and thereupon
the prisoners counsel moved for a new trial,
alleging as grounds therefor, l. Error Of the
Court il instructing the jury that there was
no variance between the indictment and the
facts shown, inasmuch as the Indictment charges
burglary in a dwelling house, whereas the proof
was that the room entered was used as store,
being in the lower story Of house the upper
part Of which was used for dwelling, and con-
nected with the lower part only by an outer
stairway. the same person occupying and using
the entire premises, which we're enclosed in one
yard, entered by gate from outside T.: which mo-
tlon was denied.
To these rulings exceptions were taken and
allowed.
The Attorney General, A. F. Judd, for the
Crown; w. C. Jones, contra.
The Indictment charges breaking and entering
a dwelling house by night with intent to steal,
and stealing. 1t is urged that the intent and the
larceny are not chargeable under Sect. l. Ch. IA,
Comp. Penal Code, viz. :" Whoever 10 the night
breaks and enters the dwelling house of another
with intent to commit murder, rape, arson, rob-
berry, larceny, or other felony, is guilty of bur-
glary." The second section Of the same Chapter
provides that "To constitute burglary it is not
necessary that any crime within the meaning of
the above section be committed" This is like
the common law offence of burglary. "A bur-
glar is one that in the night time breaketh into
mansion-house Of another with intent to kill
some reasonable creature, or TO commit some
other felony within the same whether his feloni-
Gus intent be executed or not."-3 Coke's Inst,
g. Also like the Massachusetts Statute: "Who-
ever breaks and enters in the night time build
ing, ship or vessel with intent to commit murder"
&c.-Gen. ST., 79T. At common law and under
the Massachusetts Statute, both the intent and
the larceny may be charged in one cOunt.-2
Arch, Cr p, 265 f; VIII. Or. Law 525 Roscoes
Or. Ev, 344 Or. Ev., Ss2; 3 Ch. Or. Law,
lib; Devoe VS.. Com, Met, 322; Joslyn VS..
Com, 10, 239; Larned VS.. Com, u ID, 245;
Com vs. Hope, % Pick, 5. The same rule ap-
plies to our Statute. An acquittal on this in
Statute Of breaking and entry with intent to COM
nit a felony, or with an actual felony committed.
The intent may be shown by the act, and the ad-
ditional averment of the act does not vtiate that
of the intent, but if unnecessary may be disre-
garded as surplusage.-Lohman VS.. People, l
Com, 383; People VS.. GilkinsOn, Park, 29 f;
Crichton VS.. People, 6 Ib., 366.
The fifteenth section Of the chapter cited de-
scribes lower degree of the same offence, the
only substantial difference between that and the
offence as described in the first and second Sec
tions being the absence Of any one in the house.
The prisoner may bring his sentence within the
lower penalty by showing that no one was in the
house, but not by showing that he has actually |
committed the larceny. See The King vs. Hull,
Oct term, 1868.
1t is also urged that the proof fails to show
that dwelling house was entered. But if the |
owner Of dwelling house use any portion Of his |
house for workshop, store-room, counting |
room, Office, sales-room, or study, and that por- |
ton be entered by burglar, the house-owner is
not precluded from the protection, of the law
which secures him from burglary Of dwelling |
house The law throws its mantle Of protection |
over the whole house in such cases, and is intend
ed to secure peaceful rest by night for its owner
The Statute against burglary of shop or count
ingrOOm is expressly restricted to buildings which
are not dwellings. If the ruling we're made as
asked, it would soon be found that no burglar is
indictable unless he enters the actual sleeping or
lodging rooms.
Exceptions ouerruled.
- oc 1919