Hall v. State

4 N.W. 1068, 48 Wis. 688, 1880 Wisc. LEXIS 183

• Court: Wisconsin Supreme Court
• Decided: March 30, 1880
• Status: Published

Opinion

Lyok, J.

The only question in this case is, whether an information for an offense under section 4410, R. S., p. 1046, is sufficient, tbe charge therein being that the accused broke and entered a certain dwelling-house in the day-time with intent feloniously to steal, take and carry away therefrom the goods and chattels of the owner. Counsel for plaintiff in error contends that petit larceny is not a felony under the statute definition of a felony (R. S., 1088, sec. 4637), and that the use of'the term “ or other felony,” in section 4410, plainly implies that only such larcenies are intended as are felonies, that-is, punishable by imprisonment in the state prison. Hence, the learned counsel ingeniously argues that the information should allege the value of the goods which the accused intended to steal, so that it may appear whether he intended to commit a felony, and that the information is bad if it fails to charge an intent to commit an- offense punishable by imprisonment in the state prison.

We are unable to give the statute the construction contended for. The statute must be read as though, instead of the words “ or other felony,” it had been written “ or any other offense for which the offender, on conviction,-shall be liable, by law, to be punished by imprisonment in the state prison.” Nichols v. The State, 35 Wis., 308. We think the term “or other felony ” is not a limitation on what precedes, but is inserted to extend the scope of the section to other offenses not specifically named therein. Thus, an intent to commit arson or mayhem, or to inflict upon some person great bodily harm, and doubtless other offenses, are brought within the section by the use of that term. The intent which the statute makes essen. tial to constitute an offense under it, is, generally, an intent to commit the crime of larceny, and the stealing of one dollar is larceny as completely as is the stealing of $1,000. Besides, in most cases, where the accused has failed, for any cause, to accomplish his purpose, it would be impossible to prove the extent of the larceny which he intended to commit when he broke and entered the dwelling-house. We do not believe it possible that the, legislature ever intended to throw any such burden, upon the state in the prosecution of offenses under this statute. If it did, larceny should be excepted from the statute; for as a rule no convictions could be had in such cases, however guilty the accused might be, unless his intention was consummated. Our construction of the statute is fully sustained'by the authorities referred to by the attorney general. The only case we have seen to the contrary is that of People v. Murray, 8 Cal., 519, the doctrine of which we are unable to sanction.

We do not find it necessary to determine whether petit larceny remains a felony as at common law or otherwise. The view we take of the statute under which the information was preferred, renders that question immaterial.

By the Court. — The judgment of the municipal court is affirmed.