Henry v. State

39 Ala. 679

Opinion

A. J. WALKER, C. J.

The statute upon which the indictment is framed declares, that “ any person who commits larceny in any dwelling-house ” shall be imprisoned in the penitentiary, not less than three nor more than six years. To constitute this offense, larceny must be committed in a dwelling-house. The larceny in this case was committed by taking clothes from the railing on the outer edge of what appears to have been an open piazza, in front of a dwelling-house, and attached to it. Now, such a piazza is not a house, and cannot be a dwelling-house. It may be attached to the house, and may, in some sense, be a part of the house; but it is not, of itself, a house. To be in such a piazza, is not to be in a house. It is rather an entrance to the house, than the house itself. A larceny, committed in the piazza, cannot be said to have been committed in, or inside of the house. The piazza is not within the spirit of the law, which attaches a sanctity to the house, and adds to the punishment on account of that sanctity.—Point v. State, 37 Ala. 148; State v. Chambers, 6 Ala. 855. Dwelling-house means the same in this statute as in the law of burglary. 2 East’s Cr. Law, 644; Ex parte Vincent, 26 Ala. 145. In the language of East’s Criminal Law, “ The dwelling-house must be such wherein burglary may be committed.” There could be no burglary predicated. Of a piazza, such as is described in the bill of exceptions; for there could be no breaking and entering, where there are no exterior walls. The prisoner cannot be convicted of the compound larceny, or larceny in a dwelling-house alleged.

The judgment of the court below is reversed, and the cause remanded; but the prisoner must remain in custody, until discharged by due course of law.