Hollister v. Commonwealth

The opinion of the court was delivered, by

Thompson, C. J.

—The indictment in this case follows the common-law form of an indictment for burglary. It charges that the accused with force and arms, in the night-time, did feloniously and burglariously break and enter the store-house of Stanton k McMullen, in the borough of Waymart, with intent the goods and chattels of the said Stanton & McMullen to steal, take and carry away; and that having so entered he did steal, take and carry away certain of the goods of the said Stanton & McMullen, describing them.

The breaking and entering a store-house, not parcel of a dwelling-house, is not burglary by the common law, nor by any statute in this state. No words need be used to prove this. Notwithstanding that the prisoner’s counsel made a motion predicated of this objection to the indictment, to quash it, it was overruled, and the trial was proceeded in, and the prisoner was convicted by the jury, in manner and form as he stood indicted, and afterwards sentenced to two years’ confinement in the penitentiary.

There being no authority for an indictment for burglary in breaking and entering a store-house belonging to private parties in the 135th section of the Act of 31st March 1860, it was urged in argument that the conviction might be sustained as under the 136th section of the act.

That section is special, and to cover cases not within the definition of burglary, but partaking of its nature, and applies where the breaking takes place in the day-time, into any dwelling-house, shop, warehouse, store, mill, barn or stable, outhouse or other building, or an entry by day or night without breaking, with intent to commit a felony therein. This section seems to have been designed to punish the felonious intent with which an entry is made, even if no felony be actually committed. It is like'the offence of burglary in this respect; otherwise it is quite unlike it, as it is not necessary to be in the night-time, and in one aspect of it the offence is complete without a breaking. It would not do to hold a defendant convicted on an indictment in form for burglary, strictly, liable to be sentenced under this section by changing the averments, or assuming them to be so changed to suit the conviction. In fact it is not the same offence, although it partakes of its nature; and I have no doubt but it might be joined in the same indictment. But it would be as necessary to set forth the charge, so as to bring it within the offence described in the section, as it is necessary to set forth the essentials to constitute the crime of burglary. Without defining the certainty that is required in an indictment for a felony, it must certainly be so precise in all cases as to furnish the accused with “ the nature and cause of the accusation against him.” The Bill of Rights secures this to an accused. This could not be said to be law, if a conviction on an indictment for breaking and entering one description of building was sustained in regard to one not described, or susceptible of the same description. We hold that the conviction in this case was not of the offence charged in the 136th section of the act, nor sustainable under it.

But it Avas argued that there is embraced in this charge of burglary a charge of larceny. This is true; and it is not to be denied that a conviction by the jury of the minor offence would be sustained. But that was not what occurred in the case. The defendant was convicted in manner and form as he stood indicted —that is, for burglary. Had the jury returned a verdict of “ not guilty of burglary,” but “guilty of larceny,” we do not say but that even under this indictment the conviction might have been sustained. This the jury did not do, and Ave need not discuss the matter. There was therefore no legal conviction of the defendant on the first count.

Nor was there upon the second: if it might be good under any circumstances, and we do not decide this point, it was not good in this case. In substance it charges the defendant Avith inciting one Harris to commit the crime of burglary in a place in which it could not be committed. Standing as an accessory to the principal charge which itself was not indictable as a burglary, it amounted to nothing, and does not sustain the sentence.

There is one matter on the face of this record which we cannot forbear noticing, namely, that this defendant was tried before this trial on the same indictment, and was acquitted of the burglary and larceny laid in the first count, but found guilty in the second, viz., for inciting Harris to commit the crime laid in the first count. On application by the prisoner for a new trial, the court granted it; but on the second trial held him to answer as before the whole 'indictment. Was this right? We think not. It is laid down in 3 Whart. Crim. L., last ed., § 3250, that “where there has been an acquittal on one count, and a conviction on another, a neAV trial can be granted only on the count on which there has been a conviction; and it is error on a second trial to put the defendant on trial on the former.” For this the author cites a number of authorities: 9 Yerg. 333; 8 Smedes & Marsh. 762; 1 Swan (Tenn.) 14, and 11 Iowa 239. It may be that the defendant ought to have pleaded “ auterfois acquit,” and thus have taken advantage of the acquittal, but he did not. But as he may still have the right to do so, Ave will make no order for holding the prisoner to answer for the charge of larceny contained in the first count. That was passed upon before. In fact the defendant was, on the views we entertain of the second count, entitled to have been discharged on that trial. It was good for nothing, for the reason already given. This last portion explains why we discharge the prisoner on the reversal of this sentence,-without any other order in regard to the charge against him in this indictment.

And now, to wit, January 8th 1869, the sentence in this case is reversed, and the prisoner, Erastus B. Hollister, is ordered to be discharged, and the Commonwealth is ordered to pay the costs.