Gilchrist, 0. J.
The crime charged is, that the prisoner broke and entered a shop, in the night time, with intent to steal, and actually stole therefrom.
Section 7, ch. 215, Rev. Stat., provides in substance, that if any person shall break, and enter, any shop, &c., in the night time, with intent to steal, he shall be punished, &c.
Section 9 enacts, that if any person shall, in the night time, break, or enter any shop, &c., and shall therein commit larceny, he shall be punished.
Section 8 provides that if any person, with intent to commit any crime, the punishment whereof may be confinement to hard labor, shall, in the night time, either break, or enter, any building, &c., he shall be punished.
An intent to’ commit larceny of goods to the value of twenty dollars, would subject the offender to punishment under this section. See section 13.
Under the' 7th section, the breaking, and entering, must be proved, but actual larceny, need not be proved, the intent alone being sufficient; but under the 9th section, either the breaking or the entry is sufficient, but actual larceny must be shown.
There is a singular discrimination in the punishments awarded to these several offences. Under 7th section, breaking, and entering a shop, in the night time, with intent to commit larceny, is punished by confinement for a term of from three to ten years By the 8th section, breaking, or entering, any building in the night time, with intent to commit any crime, &c., is punished by confinement for a term of from one to seven years. By the 9th section, breaking or entering a shop in the night time, and actually committing larceny therein, is punished by confinement for a term not exceeding five years.
By these last two sections, there seems to be a greater punishment awarded, for the lesser offence. Breaking, or entering, any shop, and-actually stealing, is not punished so severely, as breaking, or entering, any building, with intent to steal.
[318]*318In the present case, the prisoner is charged with breaking, and entering, with intent to steal, and actually stealing, and of this offence the jury have found him guilty.
It has been x-epeatedly decided in this State, that in indictments for burglary, such allegations were not objectionable. The State v. Squires, 11 N. H. Rep., 37; Jones v. The State, 11 N. H. Rep., 269; The State v. Moore, 12 N. H. Rep., 42. We do not understand that these decisions, or those upon which they were founded, went at all upon the ground that “ burglary includes the idea of actual felony, as well as the intent to commit a felony,” according to the view taken by the prisoner’s counsel. The stealing is laid merely as evidence of the intent, in burglary, and according to the common law definition of the crime, does not aggx-avate it. The chax’ge of the intent to steal, may be omitted. The State v. Squires, before cited. Hale advises, that both the intent to steal, and the stealing, should be charged ; on which, if the theft be unsupported, the prisoner may still be convicted, on his evil intexxtion. 1 Hale, P. C., 560. In the case of The Commonwealth v. Tuck, 20 Pick., 356, the prisoner was charged with breaking, and entering a shop, in the night time, with intent to steal, and actually stealing. The prisoner' moved in arrest of judgment, because the indictment alleged as one offence in one count, two distinct criminal acts, shop breaking, and larceny. The indictment was found, under section 11, ch. 126, of the Revised Statutes of Massachusets, which px’ovided for the punishment of breaking, and entering a shop, in the night time with intent to steal. Morton, J., in pronouncing the judgment of the court, said, “ it is difficult to distinguish the case at the bar, from burglary. An indictment setting forth, that the defendant bx’oke, and entered the shop, with intent to steal, would be good. Can the addition of the fact that he did steal, which is the best evidence of his intention, vitiate the indictment ? We cannot perceive that it does. It is true, the main charge might be established without proof of the larceny, and the larceny might be established without proof of the breaking and entering; but wherein does this differ from bux’glary ? The principles governing both, seem to be the same.”
[319]*319If this be so, as a charge of larceny does not render the indictment for burglary liable to the charge of duplicity, it would not have that effect in a case like the present.
In East. P. C., 520, (n,) it said that the true definition of burglary, is breaking, &c., with intent to commit felony, of which the actual commission is so strong a presumptive evidence, that the law has adopted it, and admits it to be equivalent to a charge of the intent in the indictment.
Neither in the Revised Statutes, nor in the edition of the laws published in 1880, is the offence of breaking and entering a dwelling-house in the night time, described as burglary ; but as the ingredients of the offence are those which constitute burglary, the common law principles are applicable to it, and we agree with Mr. Justice Morton, that the reasoning in cases of burglary has equal force in cases like the present. The motion in arrest of judgment must therefore be overruled.
The shoes were properly laid, to be the property of Eaton. The bailee of goods attached, has a special property in them, and may maintain trover for them. Poole v. Symonds, 1 N. H. Rep., 289. Goods stolen from a washerwoman, who takes in the linen of other persons to wash, may be laid to be her property, for such persons have a possessory property. Packer’s case, 2 East. P. C., 653. So the property in sheep taken in to agist, may be laid to be in the agister. Woodward’s case, 2 East. P. C. , 653. The property in a carriage in the coach-house of a coach-master, who is responsible for it, may be laid in the coach-master. Taylor’s case, 1 Leach, 395. The property in goods, sent by the driver of a coach, may be laid in the driver. 2 East. P. C., 653. The property in a box belonging to a benefit society deposited in a public-house, the landlord being entitled to have a key to the box, may be laid to be in the landlord. Rex v. Wymer, 4 C. & P., 391. It has been held in Maine, that proof that the person alleged to be the owner, had a special property, or that he held it," to do some act upon it, or for the purpose of conveyance, or in trust for the benefit of another ? would be sufficient to support the allegation, in the indictment. State v. Somerville, 21 Me. Rep., 14.
[320]*320Upon these authorities, the property in the shoes was properly laid in Eaton, who had a lien upon them for his labor, as a tailor has upon cloth delivered to him, to make a suit of clothes. Chapman v. Allen, Cro. Car., 271; Hartford v. Jones, Lord Raym., 393. It is stated in the argument of the counsel for the prisoner, that there was but one witness to prove the ownership, and that his credit was attacked. It was, perhaps, on this ground that the court gave the instruction to the jury, founded upon the contingency that the property was not Eaton’s ; that is, if the jury should not believe the evidence.
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Gilchrist, 0. J.
The crime charged is, that the prisoner broke and entered a shop, in the night time, with intent to steal, and actually stole therefrom.
Section 7, ch. 215, Rev. Stat., provides in substance, that if any person shall break, and enter, any shop, &c., in the night time, with intent to steal, he shall be punished, &c.
Section 9 enacts, that if any person shall, in the night time, break, or enter any shop, &c., and shall therein commit larceny, he shall be punished.
Section 8 provides that if any person, with intent to commit any crime, the punishment whereof may be confinement to hard labor, shall, in the night time, either break, or enter, any building, &c., he shall be punished.
An intent to’ commit larceny of goods to the value of twenty dollars, would subject the offender to punishment under this section. See section 13.
Under the' 7th section, the breaking, and entering, must be proved, but actual larceny, need not be proved, the intent alone being sufficient; but under the 9th section, either the breaking or the entry is sufficient, but actual larceny must be shown.
There is a singular discrimination in the punishments awarded to these several offences. Under 7th section, breaking, and entering a shop, in the night time, with intent to commit larceny, is punished by confinement for a term of from three to ten years By the 8th section, breaking, or entering, any building in the night time, with intent to commit any crime, &c., is punished by confinement for a term of from one to seven years. By the 9th section, breaking or entering a shop in the night time, and actually committing larceny therein, is punished by confinement for a term not exceeding five years.
By these last two sections, there seems to be a greater punishment awarded, for the lesser offence. Breaking, or entering, any shop, and-actually stealing, is not punished so severely, as breaking, or entering, any building, with intent to steal.
[318]*318In the present case, the prisoner is charged with breaking, and entering, with intent to steal, and actually stealing, and of this offence the jury have found him guilty.
It has been x-epeatedly decided in this State, that in indictments for burglary, such allegations were not objectionable. The State v. Squires, 11 N. H. Rep., 37; Jones v. The State, 11 N. H. Rep., 269; The State v. Moore, 12 N. H. Rep., 42. We do not understand that these decisions, or those upon which they were founded, went at all upon the ground that “ burglary includes the idea of actual felony, as well as the intent to commit a felony,” according to the view taken by the prisoner’s counsel. The stealing is laid merely as evidence of the intent, in burglary, and according to the common law definition of the crime, does not aggx-avate it. The chax’ge of the intent to steal, may be omitted. The State v. Squires, before cited. Hale advises, that both the intent to steal, and the stealing, should be charged ; on which, if the theft be unsupported, the prisoner may still be convicted, on his evil intexxtion. 1 Hale, P. C., 560. In the case of The Commonwealth v. Tuck, 20 Pick., 356, the prisoner was charged with breaking, and entering a shop, in the night time, with intent to steal, and actually stealing. The prisoner' moved in arrest of judgment, because the indictment alleged as one offence in one count, two distinct criminal acts, shop breaking, and larceny. The indictment was found, under section 11, ch. 126, of the Revised Statutes of Massachusets, which px’ovided for the punishment of breaking, and entering a shop, in the night time with intent to steal. Morton, J., in pronouncing the judgment of the court, said, “ it is difficult to distinguish the case at the bar, from burglary. An indictment setting forth, that the defendant bx’oke, and entered the shop, with intent to steal, would be good. Can the addition of the fact that he did steal, which is the best evidence of his intention, vitiate the indictment ? We cannot perceive that it does. It is true, the main charge might be established without proof of the larceny, and the larceny might be established without proof of the breaking and entering; but wherein does this differ from bux’glary ? The principles governing both, seem to be the same.”
[319]*319If this be so, as a charge of larceny does not render the indictment for burglary liable to the charge of duplicity, it would not have that effect in a case like the present.
In East. P. C., 520, (n,) it said that the true definition of burglary, is breaking, &c., with intent to commit felony, of which the actual commission is so strong a presumptive evidence, that the law has adopted it, and admits it to be equivalent to a charge of the intent in the indictment.
Neither in the Revised Statutes, nor in the edition of the laws published in 1880, is the offence of breaking and entering a dwelling-house in the night time, described as burglary ; but as the ingredients of the offence are those which constitute burglary, the common law principles are applicable to it, and we agree with Mr. Justice Morton, that the reasoning in cases of burglary has equal force in cases like the present. The motion in arrest of judgment must therefore be overruled.
The shoes were properly laid, to be the property of Eaton. The bailee of goods attached, has a special property in them, and may maintain trover for them. Poole v. Symonds, 1 N. H. Rep., 289. Goods stolen from a washerwoman, who takes in the linen of other persons to wash, may be laid to be her property, for such persons have a possessory property. Packer’s case, 2 East. P. C., 653. So the property in sheep taken in to agist, may be laid to be in the agister. Woodward’s case, 2 East. P. C. , 653. The property in a carriage in the coach-house of a coach-master, who is responsible for it, may be laid in the coach-master. Taylor’s case, 1 Leach, 395. The property in goods, sent by the driver of a coach, may be laid in the driver. 2 East. P. C., 653. The property in a box belonging to a benefit society deposited in a public-house, the landlord being entitled to have a key to the box, may be laid to be in the landlord. Rex v. Wymer, 4 C. & P., 391. It has been held in Maine, that proof that the person alleged to be the owner, had a special property, or that he held it," to do some act upon it, or for the purpose of conveyance, or in trust for the benefit of another ? would be sufficient to support the allegation, in the indictment. State v. Somerville, 21 Me. Rep., 14.
[320]*320Upon these authorities, the property in the shoes was properly laid in Eaton, who had a lien upon them for his labor, as a tailor has upon cloth delivered to him, to make a suit of clothes. Chapman v. Allen, Cro. Car., 271; Hartford v. Jones, Lord Raym., 393. It is stated in the argument of the counsel for the prisoner, that there was but one witness to prove the ownership, and that his credit was attacked. It was, perhaps, on this ground that the court gave the instruction to the jury, founded upon the contingency that the property was not Eaton’s ; that is, if the jury should not believe the evidence. But they did believe it, for they returned a general verdict of guilty, thus finding that the prisoner committed the offence charged in the indictment, in which is included stealing the goods of Eaton. It is, therefore, unnecessary to inquire whether the instructions founded upon the contingency that the goods were not Eaton’s, were correct, and the motion in arrest of judgment is overruled.
The motion to set aside the verdict is founded in the first place, upon the evidence that Bailey, a witness for the prosecution, had made statements in the presence of a juror, prejudicial to the prisoner’s character, and showing that he believed him to be guilty of the offence charged. But when he saw the juror, he ceased speaking, and he states that he did not know that any juror was present, and that the juror told him afterwards, that he did not take any notice of the conversation. The substance of the evidence is, that a juror heard a person in a bar-room, using harsh language, against the prisoner.' Bailey was not attempting to influence the juror, nor was he employed to do so. It would be extremely unsafe to establish it as a principle, that upon such evidence as this, a verdict might be set aside. In all communities, every trial of interest calls forth more or less idle remark, ■ignorant prejudice and bitter feeling, and every man who lives in the world and is competent to try a case, is exposed to meet with such inflictions. In general we admit, and lament their existence, but pass them by as evils, for which we have.no remedy, without reforming the World. It is only when they assume a ■tangible shape, and.create such a bias in the minds of jurors as to unfit them for the duty of impartially trying a case, that the [321]*321court can interfere; but we do not think the evidence here affords a sufficient reason for setting aside the verdict.
There is evidence, also, from French, that Mr. Cotton, one of the jurors, made statements before the trial, showing that he was prejudiced against the prisoner. The affidavit of Cotton is admissible in exculpation of himself, and to sustain the verdict. Tenney v. Evans, 13 N. H. Rep., 462. This is introduced, and in it he denies the statement of French. There is, therefore, simply a charge made by French, and denied by Cotton; and upon this state of facts, we should by no means be authorized to set aside the verdict.
The statements of Cotton, as to what took place after the jury had retired, if offered to impeach the vordiet, arc incompetent. Tenney v. Evans, and cases there cited. But for the purpose of rebutting a charge made against him, his affidavit may be read. Ibid. The motion by the prisoner must be overruled.
■Judgment on the Verdict.