Mr. Justice Paxson
delivered the opinion of the court, October 23d 1876.
This cause was contested step by step in the court below, and pressed with marked zeal and ability here. The Commonwealth was met at the threshold of its case with a motion to quash the array of grand and petit jurors, and also to quash the indictment. Both motions were overruled, and this action of the court below forms the subject of the first and second specifications of error. We will consider briefly the reasons assigned in support of these motions respectively. It was urged that there was irregularity in regard to the custody of the jury-wheel, the sealing of the same, and in the manner in which the keys were kept. It appears from the evidence taken in support of the challenge to the array, that the wheel was deposited by the jury commissioners in the vault of the county commissioners’ office, after being first placed in a chest, and the chest locked. The clerk of the county commissioners was also the clerk of the jury commissioners, and was duly sworn. It was therefore in the actual charge of their own sworn officer. After the drawing of the jurors for the February Term, the sheriff and one at least of the jury commissioners sealed the wheel. The other jury commissioner was not sworn. The sheriff says: “I have a [320] seal. Mr. Etter has also a seal. My seal is on this wheel. These impressions are not with the same seal. Two seals were there, I think — that is my impression.” It also appeared that the sheriff kept the key of the wheel in his desk at his office, to which his son, who is also his deputy, had access. The desk was not kept locked all the time. The second section of the Act of 10th April 1867, Pamph. L. 62, provides, that “ the said jury-wheel, locked as now required by law, shall remain in the custody of the said jury commissioners, and the keys thereof in the custody of the sheriff of said county.” We must give this section a reasonable interpretation. It does not designate where the wheel shall be kept, and provides no place in which the jury commissioners may deposit it. It was not intended that they should carry it to their private residences. In many instances they reside several miles from the county seat. Its removal from the seat of justice would be as inconvenient as unnecessary. It is difficult to see what better disposition these commissioners could have made of the wheel than to deposit it in a vault attached to one of the public offices, where it was under the immediate charge of their own sworn officer. It was clearly in their custody within the meaning of the law. The objection that the wheel was not properly sealed is not made out by the proof. The onus was upon the party making the challenge, and it has not been sustained. In Brown v. Commonwealth, 23 P. F. Smith 322, there was proof that the wheel was not sealed as required by law. Here there was positive proof that the sheriff and one commissioner did seal, and no proof that the other did not. It was the duty of the plaintiffs in error to have called the other commissioner. That he also sealed is probable from the testimony of the sheriff. In the absence of any negative proof the presumption is that his duty in this respect was properly performed. The sheriff had the custody of the key. In that the law was complied with. We think, however, that it was carelessly kept. Officers charged with such delicate duties cannot be too exact in the performance of them. A prudent regard for the public interest requires that the key of the jury-wheel should be kept where it is not accessible to any one but the person charged with its custody.
We do not see much force in the further objection that the minimum number of an Oyer and Terminer panel, viz.: forty-eight, were not in point of fact summoned. One of the names drawn from the wheel was returned by the sheriff “not found,” and one as “ dead.” This of course reduced the panel to that extent. Sect. 113 of the Act of 14th of April 1834, Pamph. L. 39, requiring forty-eight jurors to be summoned and returned as petit jurors in the Oyer and Terminer, must be read in connection with sects. 118,119 and 125 of said act. Sect. 113 refers to the venire, and the manifest meaning of it is that the venire shall require that at least forty-eight jurors shall be drawn. Sect. 118 provides that so [321] many persons shall be drawn as- shall be required by the writ of venire. By sect. 119 the slips containing the names of persons removed or dead are to be destroyed and other names to be drawn in their stead until the panels are complete. This of course means where the death or removal of the persons whose names are drawn was known to the sheriff and commissioners at the time of the drawing. The 125th sect, provides that the sheriff shall summon at least ten days before the return day of the venire the persons whose attendance shall be thereby required. Taken together we do not think that these provisions of the Act of 1834 require more than that forty-eight names shall be drawn from the wheel, and that in the absence of any knowledge at the time that any of the persons whose names are so drawn are dead or removed, the sheriff shall summon so many thereof as can be found within the county. This we believe has been the practice generally throughout the state, and is entirely consistent with Foust v. Commonwealth, 9 Casey 338. In that case forty-eight persons were summoned, but one of them was disqualified by reason of not residing within the county and being an alien. He was therefore not a juror and of no more service than the persons returned by the sheriff in this case as “not found” and “dead.” It is not a right of a defendant to have forty-eight jurors in actual attendance in the .Oyer and Terminer. If all are summoned and attend, the court may excuse some of them, and this cannot be assigned for error: Jewell v. Commonwealth, 10 Harris 94. Nor can a defendant be prejudiced thereby. It does not impair his right of challenge. He has a right to his peremptory challenges and as many more as he can show cause for, while special venires are provided by law in case the panel should be exhausted. It was clearly no ground of challenge that the sheriff and jury commissioners did not destroy the slips containing the names of the jurors absent or deceased, and draw others in their stead. It does not appear that such death or absence was known to either the sheriff or jury commissioners when the names were drawn. There was therefore no omission of duty on their part. Nor do we see any force in the further objection that the names of persons exempted at the February Term from serving as jurors were not returned to the wheel at the time the present panel was drawn. The 135th sect, of the Act of 14th April 1834, Pamph. L. 364, provides that “ the name of every person selected, drawn, summoned and making default as aforesaid; also the name of every person who shall be excused from serving, shall be returned by the sheriff and commissioners to the wheel from which it was taken at the time of the next drawing from the said wheel for any of the courts of such county,” &c. This duty was neglected. The names were not returned to the wheel as they should have been. But we are unable to see how the defendants ifere injured by this omission. It is a matter of which they have no right to complain. This section. [322] of the Act of 1834 was intended to secure equality in the performance of jury duty, and was not for the purpose of keeping the names in the jury wheel for the benefit of defendants. They have no such right. Otherwise a person who should be tried at the commencement of the year would possess superior advantages over those tried at its close when the wheel is comparatively empty. It was urged, however, that the array should be quashed because “ it does not appear from the return to the precept that the jurors were legally drawn, how they were drawn or that they were in fact drawn at all. Nor does it appear from the record that they were legally summoned.” I have examined the record with some care, and it discloses no return to the venire by the jury commissioners. This is certainly an irregularity. It should appear from the record that the names of the panel were drawn from the wheel in the manner required by law. This can only appear by the return of the sheriff and jury commissioners. It is true the Act of Assembly 'does not require the jury commissioners to return the venire. But this is a common-law duty, and needs no legislative command. It is the duty of every officer to whom a writ is directed to make return of the manner of its execution, and such return is the appropriate evidence of that fact. This omission could and ought to have been supplied in the court below as soon as its attention had been called to it by an order upon the jury commissioners to return the venire. It was but an amendment of the record, and a record may be amended even after writ of error or certiorari lodged in the office: In re Election of Sheppard, 27 P. F. Smith 297. Serious as this irregularity is we would hesitate to reverse upon this ground, especially in view of the Act of 21st of February 1814, 6 Sm. Laws 11, Br. Purd. 388, pi. 56, and the construction which said act received in Dyott v. Commonwealth, 5 Whart. 67. The error is more formal than substantial, and the court below appears to have had such evidence before it as satisfied its conscience that the law had been complied with in all important particulars. Yet as this judgment must be reversed for other reasons it is proper to call attention to what we regard as a loose and careless practice.
What has been said applies as well to the motion to quash the indictment as to the • challenge to the array. In support of the former motion, there was, however, the additional reason that two of the grand jurors were stockholders in the National Bank of Chambersburg. This was no ground to quash the indictment. It might have been a ground of challenge as to the particular jurors. It is well settled that a grand juror may be challenged for cause. This is the current of the English authorities. It was allowed in this country in the trial of Col. Burr, and in this state in an Oyer and Terminer case tried before Tilghman, C. J., and Breokin-RiDfiE, J., in 1814, 2 Browne 323.
We see no merit in the third specification. The witness, John [323] L. Black, had sufficiently identified the defendant Johnston to permit his statement in regard to the satchel to go to the jury and it was not competent for the defendants’ counsel to interrupt the examination in chief at this point in order to inquire into the opportunities of the witness of knowing Johnston.. Such cross-examination was competent, but not at that particular time. The fourth, fifth and sixth specifications are also without merit and need not be discussed. The admission of the “jury record,” referred to in the seventh specification, was of doubtful propriety, as it was not sworn to, and does not appear to have been kept in pursuance of any Act of Assembly. The offer was to the court, not to the jury, and is unimportant. The eighth specification is wholly unsustained. The order in which counsel shall sum up is in the discretion of the court below, and is not assignable for error. The learned judge was right in declining to affirm the defendants’ first point, referred to in the ninth specification. The evidence for the Commonwealth, if believed by the jury, was sufficient to make out the offence of burglary, either at common law or under the statute.
There was error in the answer to the defendants’ second point, embraced in the tenth specification, but it was in their favor. They have, therefore, no cause of complaint. We might well stop here, but as this case must go back for another trial, we deem it our duty to indicate the principles upon which this branch of it should be ruled. It is established by numerous authorities that there may be a constructive breaking. This may be done by an act in fraudem legis, or by fraud not carried on under cloak of legal process. Accordingly it has been held, that where thieves came to a house in the night-time, with intent to commit a robbery, and knocking at ‘ the door, pretending to have business with the owner, and being by such means let in, robbed him, they were guilty of burglary: Le Molt’s Case, Kel. 42; 2 Hawk. P. C. 131; 1 Russell on Crimes 793; 1 Hale P. C. 552; 2 Arch. Cr. Law 279. The evidence for the Commonwealth upon this point was that the defendants (plaintiffs in error) came to-the door of Mr. Messersmith’s house, after dark, on the evening of the 24th of March last. The witness Kindline says: “ I opened the door, and Rolland and another man were outside. * * * I did not know the other man. Rolland asked whether Mr. Messersmith was in. I said he was not, that he had just walked out. . He said he would like to see Messersmith; that he had a friend from New York who wanted to transact a little business with him. He introduced his friend as Mr. Johnston. * * * He said ‘ Good evening. Perhaps we will call later in the evening.’ ” They did call about twenty minutes afterwards, rang the bell and were admitted by Mr. Kindline. Messersmith had returned, and they were shown into his room. Rolland introduced Johnston as the man of whom he had previously been speaking to Messersmith in regard to the purchase of a farm. Some other conversation [324] occurred in reference to matters of alleged business, when Mr. Messersmith was suddenly seized and the robbery attempted. There was evidence here to go to the jury of a constructive breaking; of a trick and a fraud by means of which the defendants had obtained admission to the house. The learned judge of the court below evidently regarded the first attempt to enter as a trick, but held that inasmuch as they did not obtain admission then, but went away and returned in the course of twenty minutes, and were admitted without any further reference to their pretended business, such entry was not a constructive breaking. This was error. It was for the jury to say whether upon all the evidence they believed the first call at Mr. Messersmith’s house was for the purpose of gaining admission by fraud and artifice, with intent to commit a felony therein ; and whether the second call, when they actually obtained admission, was a part of the same transaction in pursuance of such previously formed design.
The learned judge was right in refusing to affirm the prisoners’ third point. But it was error, as has already been stated, to say that there “ is not such evidence of fraud or trick practised by the the prisoners to gain admission into the house as will constitute a breaking.” It was also error to say, in the same sentence, that • “ the entry of the prisoners may have been a burglarious entry without breaking.” There is no such thing as burglary in Pennsylvania without a breaking, either actual or constructive. We shall refer to this more fully when we come'to the last assignment of error.
^ The answer to the fourth point was error. The mere unlatching 4 or breaking of a door in an attempt to escape is not burglary in this Instate. We do not think it was ever so at common law. It is true ] it was at one time asserted to be so by Lord Bacon and other eminent English lawyers, but it was denied by authority of equal weight; notably by Sir Mathew Hale, by Lord Holt and by Trevor, C. J., in Clark’s Case, 2 East P. C. Ch. 15; in 1 Hale 554, where it is said: “ If a man enter in the night-time by the doors open, with the intent to steal, and is pursued, whereby he opens another door to make his escape, this, I think, is not burglary, for fregit et exivit non fregit et intravit.” And see Black. Com., vol. 4, p. 223. This difference of opinion ’among eminent jurists in England led to the passage of the Statute of 12 Anne, which, after referring to the doubt on the subject, provides, that a breaking out of a dwelling-house by a burglar in the night-time, in an attempt to escape, was a sufficient breaking to sustain a conviction. This statute was subsequently repealed by the statute of 7 & 8 Geo. 4, ch. 27, and reenacted by 7 & 8. Geo. 4, ch. 29. The passage of the Act of 12 Anne is strong evidence that it was not the common law. No such | statute was ever enacted in Pennsylvania, and I am not aware of ! any decision recognising such a rule here. In the fifth report of the English commissioners on criminal law, we find the following [325] remarks on burglary, which are so forcible, and bear so directly upon this point, as to justify their admission here: “By the statute of 12 Anne, ch. 1, § 7 (subsequently repealed and re-enacted), the crime of burglary was extended to the case of an offender who, having committed a felony in a dwelling-house, or having entered therein with intent to commit a felony, afterwards broke out of such dwelling-house in the night-time. This extension does not, we think, rest upon just principles. After a felony has been committed within the dwelling-house, the offence is not in reality aggravated by lifting the latch of a door, or the sash of a window, in the night-time, in order to enable the offender to escape. A breaking-out, indeed, may be an innocent act, as it may be committed by one desirous of retiring from the further prosecution of a crime, and the extension of the law of burglary to such a case is not warranted by the principles upon which the law is founded, inasmuch as a circumstance not essential to the guilt of the offender, or the mischief of the act is made deeply essential to the crime. It is ineffectual, even with a view to the object proposed; the pretext for the conviction fails in the absence of a breaking out, which is a casual , and uncertain circumstance.”
The thirteenth and fourteenth specifications raise a question that ' is not free from difficulty. It was not error to refuse to affirm the defendant’s seventh point for the reason that two of the counts of the indictment charge the offence of burglary at common law, to wit: the breaking and entering a dwelling-house in the night-time with the intent to commit a felony. But the case requires from us a construction of the 135th section of the Act of 31st March 1860, Pamph. L. 415, and of the second section of the Act of 22d April 1863, Pamph. L. 531. The first-named act provides that “if any person shall by night wilfully and maliciously break or enter into any dwelling-house * * * with an intent to commit any felony whatever, whether the felonious intent be executed or not, the person so offending shall, on conviction, be deemed guilty of felonious burglary,” &c. It will be seen that, by the terms of the act, an entry without breaking, in the night-time, constitutes felonious burglary. Then came the Act of 1863, before mentioned, which provides that, “ if any person shall in the day-time break and enter any dwelling-house, * * * or wilfully and maliciously, either by day or by night, with or without breaking, enter the same with intent to commit any felony therein, the person so offending shall be guilty of felony,” &c. I have given so much of each act as relates to dwelling-houses. The learned judge of the court below held that the Act of 1863 was “ intended to punish and provide for the breaking and entering a dwelling-house by day-time, and of other buildings by day or by night. Any other reading of this section makes it cover what was burglary at common law, which was not the legislative intention.” The Act of 1863 is an\ exact [326] rescript of the 136th section of the Act of 31st of March 1860, with the exception that the words “ with or” are interpolated so as to make it read “ wilfully and maliciously, either by day or by night, with or without breaking, enter the same,” &c. That the 136th section of the Act of 1860 was intended to apply to cases where the breaking takes place in the day-time, or there is an entry by day or night without breaking, with intent to commit a felony, is manifest. This was the view taken of it by this court in Hollister v. Commonwealth, 10 P. F. Smith 105. But the Act of 1863 supplied the aforesaid section of the Act of 1860, and extends to an entry by night, with or without breaking. Then as to the 135th section of the Act of 1860. By its terms it makes an entry at night, with or without breaking, felonious burglary. If we construe this act literally, it is supplied by the Act of 1863, and the crime of felonious burglary no longer exists by statute in this state. The offence is reduced to the grade of an ordinary felony, punishable by four years’ imprisonment. For it is impossible for two statutes defining exactly the same offence, the one punishing it as felonious burglary, and the other as a simple felony, to stand together. Under which statute shall a prisoner be sentenced ? How shall he be tried ? In the Quarter Sessions, or the Oyer and Terminer ? These are matters that must not be left to conjecture, to be guessed at upon the trial, or decided upon the caprice of the judge. It is therefore our duty to put such a construction upon these statutes as will most effectually carry out the legislative intent, and produce a consistent and harmonious system. In view of all this legislation, we have no doubt it was the intention of the legislature, by the 135th section of the Act of 1860, to define and punish the common-law offence of burglary, and that the word “ or” in said act, “ break or enter,” was introduced by mistake or inadvertence; for the sueceeding section (136) of said act proceeded to punish the offence of entering a dwelling-house in the night-time without breaking. It is made a lighter offence, a simple felony, punishable by four years’ imprisonment. To read the 135th section, therefore, to break or enter, is inconsistent with the 136th section. We are therefore led to the conclusion that the word “or” in the 135th section should be read “and,” which would make the offence that of burglary at common law. Such a mode of construing a statute is not without precedent. It was done by this court in Murray v. Keyes, 11 Casey 334; Bollin v. Shiner, 2 Jones 205; Foster v. Com., 8 W. & S. 77. It is said in Dwarris on Statutes 772, that “ ‘ and’ is not always to be taken conjunctively. It is sometimes, in the fair and rational construction of a statute, to be read as if it were ‘or,’ and taken disjunctively and distributively.” Giving to the 135th section of the Act of 1860 the construction we have indicated, it harmonizes perfectly with the 136th section of the same act so far as relates to dwelling-houses; the former punishing as felonious burglary the [327] common-law offence of breaking and entering a dwelling-house in the night-time with intent to commit a-felony, and the other punishing a lesser offence, partaking of the nature of burglary, viz., when the breaking takes place -in the day-time, or there is an entry by day or by night without breaking. Then we have the Act of 22d of April 1863, the 2d section of which interpolates the words “with or” into the 136th section of the Act of 1860, yet in all other respects leaves the latter act intact. What was the legislative intent in the Act of 1863 ? Was it intended that the words “with or” should apply to dwelling-houses? The whole subject was completely covered by the legislation contained in the 136th and 136th sections of the previous Act of 1860. They provide for, 1st, breaking and entering by night; 2d, breaking and entering by day; and 3d, entering by day or by night without breaking. There was therefore no reason why the words “ with or” should be applied to. dwelling-houses, but on the contrary ample reasons why they should not. It will be observed that' the 136th section, with the single exception of dwelling-houses, relates to a class of buildings entirely different from those embraced in the 136th section. As to such buildings it is not difficult to see why the legislature enlarged the offence by the Act of 1863 so as to make it the entering, either by day or by night, with or without breaking.
We are of opinion that as to the 136th section, the word “or,” must be read “and,” and that the words “with or ” in the second section of the Act of 22d April 1863, were not intended to apply to dwelling-houses. This construction makes the legislation referred, to a consistent and harmonious whole.
We are not surprised, in view of the wording of the 135th section of the Act of 1860, that the learned judge of the court below instructed the jury in answer to the defendant’s fifth point, that there could be a conviction under the counts which charged an entry without breaking. But under the construction which we have placed upon said section, it was error.
The judgment is reversed and set aside, and the record remitted to the Oyer and Terminer for another trial. And it is further ordered that the inspectors and warden of the Eastern Penitentiary, at the city of Philadelphia, surrender the bodies of Ralph L. Rolland and B. Johnston, the plaintiffs in error, to the high sheriff of. Franklin county for custody and trial in due course of law.