Commonwealth v. Tadrick , 1896 Pa. Super. LEXIS 196 ( 1896 )

Opinion by

Wickham, J.,

On December 31, 1893, one Peter Werner missed a sum of money, which he had concealed in a bed tick in his dwelling house. Suspecting that his neighbors, Joseph Tadrick and Annie, his wife, and Johanna, their daughter (the latter being then between eleven and twelve years old) had something to do with its disappearance, he caused their arrest a few days later. Indictments were found against the mother and daughter for larceny and receiving stolen goods, and against Joseph Tadrick for receiving only.

On February 6, 1894, the three defendants were acquitted of all the charges contained in the indictments and nothing more was done until March, 1895, when Werner again had them arrested, and later secured an indictment against them in which they were jointly charged, first, with breaking and entering the prosecutor’s dwelling house, with intent to steal his goods, chattels, moneys, etc., contrary to section 2 of the act of April 22, 1863, P. L. 531; and second, with willfully and maliciously, without breaking, entering the said dwelling house, with a like intent. The indictment also contains three other counts charging conspiracy.

Early in the trial, the court below, on motion of the district attorney, directed a nolle prosequi to be entered as to Johanna Tadrick, who was used by the commonwealth as a witness. In charging the jury the court instructed them to acquit Joseph Tadrick, against whom there was no evidence, and, so far as the appellant, Annie Tadrick, was concerned, limited their attention to the second count of the indictment under which she was convicted and sentenced. The section of the act of 1863, under which this count was framed, created the offense sometimes called statutory burglary, and provides as follows: “ If any person shall in the day-time, break and enter any dwelling house, shop, warehouse, store, mill, barn, stable, out house or other building, or, willfully and maliciously, either by day or night, with or without breaking, enter the same with intent to commit any felony whatever therein, the person so offending shall be guilty of felony,” etc.

The defendants, at the trial, entered the plea of autrefois acquit, and introduced sufficient evidence to show that the larceny whereof Johanna Tadrick had been acquitted was the same felony which the last indictment charged her with intending to commit. The court below, acting on the view that the offences of larceny and statutory burglary are so dissimilar that a conviction or acquittal of the former would not bar a prosecution for the latter, directed the jury to find for the commonwealth.

This is apparent, not alone from the charge, but more fully by the following record entry as to the jury’s action, viz: “ after hearing, by direction of the court, they find in favor of the commonwealth.”

The appellant was convicted on the testimony of her daughter Johanna, aided by a few circumstances of corroboration. In substance, the evidence for the commonwealth was that the appellant had sent the daughter to the house of the prosecutor to steal the money; that the daughter went unwillingly; that when she reached the door and, so far as we can see, before she had knocked or indicated a desire to enter, she was invited by the prosecutor and his wife to go in, which invitation she accepted; that she took her seat on the bed where she knew the money was concealed; that, at the request of the prosecutor and his wife, she cared for their baby while they went to the stable to milk a cow; that, during their absence, she reached into the bed tick, abstracted the money and hid it in her dress, and on returning to her home gavé the money to her mother. This evidence, if believed, made the mother an accessory before the fact to the larceny, and under section 44 of the act of March 31, 1860, P. L. 439, gave the commonwealth „ the right to indict and try her as a principal felon.

It may be added here, that while there was evidence that the girl went to the prosecutor’s house at least once before, for the purpose of stealing his money, yet it is evident from the record that, the commonwealth elected to rely on the entry made December 31, 1894, and that was the only entry which the court in its charge directed the jury to consider. That election is binding, not only here, but as well in any future trial of the case.

Returning to the plea of autrefois acquit, it was held in Heikes v. Commonwealth, 26 Pa. 513 (citing People v. Bauste, 1 John. 66), that, “the true test to ascertain whether the plea of autrefois acquit be a good bar is, whether the evidence necessary to support the second indictment would have been sufficient to secure a legal conviction on the first.” The rule is repeated in Commonwealth v. Trimmer et. al., 84 Pa. 69, and Hilands v. Commonwealth, 114 Pa. 380.

Applying this test to the present ease, the court below was clearly right in its instructions to the jury, unless the appellant could have been convicted under the first indictment of an attempt to commit larceny. Where the facts are not disputed, the court may direct a verdict for or against the commonwealth, as the case may require: Whart. Crim. Plead. &.Prac. sec. 812, “ It is the duty of the court to declare the legal effect of a record which is offered to sustain the plea of autrefois acquit Commonwealth v. Trimmer et. al., supra.

Larceny is an offense against personal property. The crime whereof the appellant has been convicted is one against realty and the security of its occupant, “ partaking of the nature of burglary: ” Rolland v. Commonwealth, 82 Pa. 306. It is complete the moment one willfully and maliciously crosses the threshold with intent to steal and before any further attempt has been made to commit the larceny. The actual commission of the latter offense may be prevented by lack of safe opportunity, the vigilance of the inmates of the house, the removal of the article intended to be stolen, ‘or by a change in the offender’s purpose. “ An acquittal of burglary with intent to commit a larceny is no bar to a subsequent prosecution for the larceny charged to have been actually committed, and a conviction for the larceny is not a bar to a subsequent indictment for breaking and entering with the intent to commit the larceny 1 Bish. Crim. Law, sec. 1062; Whart. Crim. Evi. sec. 580. In Wilson v. The State, 24 Conn. 57, it was held that indictments for statutory breaking and entering, with intent to steal, and for larceny, could legally stand on the same transaction, there being a difference between the nature and essence of the offenses.

But where, as in Pennsylvania (see sec. 50, act. March 31, 1860, P. L. 442) the jury, on acquitting the defendant of the offense, specifically charged in the indictment, may convict him of an attempt to commit the same, there can be no subsequent conviction of any crime, whatever may be its name or aspect, the evidence necessary to make out which would have sustained a conviction for an attempt under the former indictment. “ Where one act has two or more aspects, if the defendant could have been convicted of either under the first indictment, he cannot be convicted of the two on the two indictments, tried successively. In other words, where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction on the first, the second is barred by a conviction or acquittal on the first.” Whart. Crim. Plead. & Prac. 471.

It remains to be seen whether the appellant could have been properly convicted of an attempt to commit the larceny charged against her in the first indictment. To constitute an attempt there, must be an intent to do a thing, combined with an overt act which falls short of the thing intended. It is sometimes very difficult to determine the line between mere intent and attempt. In the case under consideration, Johanna Tadrick left her mother’s house, intending to steal the prosecutor’s money, entered the house of the prosecutor and seated herself on the bed where she knew the money was concealed. Nothing remained to be done save to insert her hand and secure the money. Each of the three acts mentioned was intended to be, and actually was, a step towards the consummation of her felonious purpose. Taken together and in connection with the uninterrupted intent existing in her mind, we are compelled to hold that they constituted an attempt at larceny which would have been punishable had she gone no further. If the offense of larceny were not completed, we must assume, from the evidence, that the failure was not owing to a change of purpose, which of course would leave her guiltless, but to extraneous circumstances, over which she had no control. An overt act is one which manifests an intention to commit the crime: Bouvier’s L. D. 267. It need not be the last proximate act prior to the consummation of the attempted crime, if the latter be a felony: Uhl v. Commonwealth, 6 Grattan, 706; 1 Bish. Crim. Law, sec. 764.

In People v. Lawton, 56 Barb. 126, it appeared that the defendant, intending to break and enter a certain storeroom, took with him tools for the purpose and, with a companion, reconnoitered the premises. Concluding that they needed another implement with which to effect an entrance, they deposited their tools in an adjoining alley and tried to break into a blacksmith shop near by to secure the additional implement. While so engaged, they were surprised and the defendant was arrested. It was urged that no offense had been committed against the storeroom, as no physical violence appeared to have been employed, nor an actual attempt to enter shown, but the appellate court, in a well reasoned opinion, held that the defendant had been rightly convicted of an attempted breaking and entering, the court saying, “ An attempt may be immediate, an assault for instance, but it very commonly means a remote effort or indirect measure, taken with intent to effect an object.” See also 1 Bish. Crim. Law, 760; Cunningham v. State, 49 Miss. 685.

We are satisfied that the evidence relied on by the commonwealth to convict, in the present case, would have sustained-a conviction for attempted larceny under the first indictment, and that therefore the first assignment of error, which complains of the direction of the court below to the jury to find for the commonwealth, in the issue based on the plea of autrefois acquit, must be sustained.

The sixth assignment of error rests on the admission of testimony against the appellant’s objection, showing that Joseph Tadrick was physically unable to perform manual labor for a period of seven or eight months next preceding the commission of the alleged crime. Whether admissible or not, the testimony, we are satisfied, was harmless, and therefore this assignment of error is not sustained.

The allowing proof of the larceny complained of in the second, third and fourth assignments was not error. This was permitted, not to establish a substantive offense, whereof the appellant could have been convicted at the trial, but merely ,to show the purpose of the entry. These assignments of error are therefore overruled.

The answer of the witness mentioned in the fifth assignment contained nothing helpful or hurtful to either side, and hence constitutes no ground of objection here.

The evidence, the rejection of which is complained of in the seventh assignment, was a repetition of that offered and admitted in support of the plea of autrefois acquit. The court refused to admit it again under the general issue. As this evidence was rendered entirely nugatory by the binding instruction to find for the commonwealth in the issue raised by the former plea, the appellant, under the ruling in Altenburg v. Commonwealth, 126 Pa. 602, was in some way entitled to its benefit later in the trial. The seventh assignment of error is sustained.

The eighth assignment is overruled. Johanna Tadrick was a competent witness, whether or not a nolle prosequi was entered as to her.

The second paragraph of the ninth assignment of error contains the following, inter alia, from the charge of the learned judge of the court below, viz: “ The contention here is that this little child, at the instigation of her mother, went to the house of Peter Werner and entered it with the intention of stealing his money, and that she carried out that purpose and intent, and did take the money of Peter Werner. That is in substance the charge that is made and which the commonwealth has produced evidence to sustain.”

It is hardly necessary to say that the language just quoted was calculated to give the jury an entirely wrong idea of the offense, for which the appellant was being tried, and to lead them to regard as its most essential element, the larceny of which she had previously been acquitted. That the presentation of the case in this way was the result of inadvertence is evident from the fact, that elsewhere in the charge the crime to be considered by the jury is correctly, although very briefly and generally, defined.

We cannot say which utterance of the court controlled the jury. The charge is open to the objection of being confusing and misleading, and is therefore erroneous. The jury should have been told in words that could not be misunderstood, that the fact of the larceny bore only on the question of intent in entering the house. The ninth assignment of error is sustained.

The language from the charge assigned for error in the tenth and last assignment is also, when we look at the general tenor of the whole charge, calculated to mislead. The court says, “We have evidence, it is true, that they were indicted for larceny, but that that was this case we have no evidence to show. There is a gap there, and therefore, as there is no evidence, there is no need of your considering that question.”

A lawyer, familiar with the facts of the case, might infer the court’s meaning, after studying the other instructions, but the average juror would be apt to think that the charge was substantially larceny, which the defendants were trying to avoid by showing that they had been once tried for the same offense. The tenth assignment of error is sustained.

As this case goes back for a new trial, we deem it proper to call attention to an important question, as to the construction of the act of 1868, not fully raised in the court below, nor presented by the record here, but suggested by the evidence and referred to in the argument of the appellant’s counsel. So far as the evidence shows, the appellant’s daughter, when she reached the door of the prosecutor’s house, and before she had, by knocking, or otherwise, indicated a desire to enter, was invited to come inside by the prosecutor and his wife. No act, request, fraud, trick or artifice appears to have been used to obtain admission. The invitation may be said to have resulted from the spontaneous will of the lawful occupiers of the house, uninfluenced by the appellant or her daughter, unless the latter’s physical presence is to be regarded as an influence worthy to be considered. If the evidence on this point, produced at the next trial, is similar to that offered at the first, it will be a matter well worthy of consideration whether an entry, neither actually nor constructively against the will of the occupier of the house, can be deemed “ willfully and maliciously ” made, within the meaning of these words when employed in a highly penal statute.

The judgment is reversed and a venire facias de novo awarded.