Hackett v. Commonwealth , 1850 Pa. LEXIS 302 ( 1850 )

The opinion of the court was delivered by

Burnside, J.

The conviction in this case was for an attempt to commit a burglary. The prisoner’s counsel moved in arrest of judgment. The motion was overruled. This writ of error was allowed by the chief justice.

Three errors have been assigned in this court on behalf of the plaintiff in error. No counsel appeared for the Commonwealth.

1st. It is alleged, that the court erred in denying the motion in arrest of judgment, for the reasons given. 2d. That the court erred in the sentence pronounced; and 3d, That the Oyer and Terminer had no jurisdiction.

It is contended the offence is charged as a felony, and is only a misdemeanor. By the act of 1718, 2 Smith’s Laws 575, it is provided, that if any person or persons shall be convicted of burglary, which is a breaking and entering into a dwelling-house of another, in the night-time, with intent to kill some reasonable creature, or to commit some other felony within the same house, whether the felonious intent be executed or not, he or they, so offending, within this province, being convicted thereof as aforesaid, shall suffer death, without benefit of clergy: 1 Smith 115,2 Smith 575. So our law remained, until our penal code was ameliorated in 1790. The higher offences of murder, rape, robbery, arson, and burglary, were punished with death. Prior to 1790, the attempt to commit either of these high offences was punished with pillory as well as other infamous inflictions. I remember the stocks and pillory in the winter of 1792-3, when a small boy, going to school in Norristown. They were a terror to all the boys in the town.

This indictment is for an attempt to commit the crime of burglary, (among the highest known to our laws.) The defendant, on the night of the 24th of June, 1848, with an axe and hatchet, broke the dwelling-house of Debold Hare, with intent feloniously and burglariously to enter, and the goods and chattels of the said Dehold Hare, in the same dwelling-house being, feloniously and burglariously to steal and carry away. There are many unnecessary words in this indictment, which I treat as merely surplusage. The indictment is framed with sufficient certainty. It contains a sufficient description of the offence with which the prisoner stands charged. I need only refer to 1st (kitty’s Criminal Law, 168, and the authorities there cited. Lord Hale complained, that in his day the strictness required in indictments was grown to be a blemish in the law and the administration of justice, and in consequence the greatest crimes had gone unpunished, by reason of these unseemly niceties: 2 Sale’s Pleas of the Crown 198. The words that are superfluous may be rejected as surplusage: 1 Leach 474; 1 Term Reports 322; 1 Chitty’s Criminal Law 174.

It is well settled, that an indictment for felony will not support a conviction for a misdemeanor: 3 Strange 1153; 1 Leach 12; Archbold’s Criminal Law 106. But this is not an indictment for felony; it is for a misdemeanor. The words feloniously and burglariously apply to the intent the prisoner had in view, to commit a felony and burglariously to steal, take, and carry away, and are not improperly used in this indictment. The conviction here was of a high misdemeanor.

The sentence is complained of because the learned counsel cannot find in any book, or in any act of Assembly, a sentence for an attempt to commit a burglary, or a definition of the offence. If sentences are found, they must be found in the eastern end of Pennsylvania. In attempts to commit this offence, the perpetrator is seldom arrested. The attempt must be in the nighttime, and when made, generally at the dead hour of the night. The first object of the owner’s of the house is to protect their family and property, and drive off the marauder. It being in the dark, his identity is.seldom known, and he makes his escape from justice. Where a conviction is had, it is clearly within the provisions of the 4th section of the act to ameliorate the penal laws of this state, passed the 5th of April, 1790, which provides that every person convicted of bigamy or of being an accessary after the fact, in any felony, or of receiving stolen goods, knowing them to be stolen, or of any other offence not capital, for which, by the laws in force, before the act entitled “An act to amend the penal laws of this State,” burning in the hand, cutting off the ear, nailing the ear or ears to the pillory, placing in and upon the pillory, whipping, or imprisonment for life, is or maybe’inflicted, shall, instead of such parts of the punishment, be fined and sentenced to undergo in the like manner and be confined, kept to hard labor, fed and clothed as hereafter directed, for any term, not exceeding two years, which the court before whom such conviction shall be had, may and shall, in their discretion, think adapted to the nature and heinousness of the offence: 2 Smith’s Laws 533. The legislature found it necessary to give the courts a further discretion, by the act of the '4th of April, 1807: 2 Smith’s Laws 555 : “ Instead of two years imprisonment, to which the power of the courts of this commonwealth is limited, in and by the fourth section of s An act to reform the penal laws of this State,’ the said courts respectively shall hereafter be invested with the power of extending the confinement in such cases to a period not exceeding seven years, in their discretion, according to the circumstances of the case before them: Provided, that the power thus conferred on the said courts shall not extend to offences enumerated in the said section, of bigamy, or of being accessary after the fact in any felony, or of receiving stolen goods, knowing them to have been stolen.”

What offences had the legislature most in view, when they extended the discretion of the court to seven years ? Most certainly the attempt to commit those that were formerly capital—the attempt to commit murder, rape, robbery, burglary, and arson, offences in themselves base and infamous, and always exhibiting depravity of heart.

But one other point remains to be considered. The indictment was found in the Court of Quarter Sessions of the Peace of Potter county, and duly certified into the Court of Oyer and Terminer, and there tried. It is contended that the 1st section of the act of the 16th of June, 1836, takes away the jurisdiction of the Oyer and Terminer. After carefully reviewing the whole act, we think such a construction would be inconsistent with several of its provisions. The act of the 14th of April, 1834, Dunlop, 2d. ed. 617, provides that courts of oyer and terminer and general, jail delivery shall be holden four times annually, in every county, at the several times appointed for holding the courts of Quarter Sessions, although no special precept shall have been issued for that purpose.

This act, as well as the act of the 16th June 1836, Punlop 2d. ed., authorizes indictments to be certified from the Sessions, into the Oyer and Terminer. In the latter act, the legislature particularly mentions the offences that shall be commenced in the Oyer and Terminer. They also declare.that the Oyer and Terminer shall have pow'er to try indictments found in the Sessions, and certified by the said court, according to law. To make this act consistent, to give effect to all its provisions, cases originating in the Oyer and Terminer, and found by a grand jury in that court, and cases duly certified from the Sessions, may be tried -in the Oyer and Terminer. Many of the lesser offences, such as the one under consideration, never ought to be tried in the Sessions in the absence of the law judge of that court.

The judgment is affirmed.