EwiNG, Judge,
delivered the opinion of the couijL fEAIi]
This was an indictment for burglary and i^nte. the sixteenth section of the third article of the|ac$ concern^ ing crimes and punishments, which declares -- person convicted of breaking and entering any stem, stop , booth, tent, warehouse, or other building, or any boatW*V8!wss».' sel, in which there shall be at the time some human being, or any goods, wares, merchandise or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree.” The indictment charges that the defendant “ at, &c., on, &c., feloniously and forcibly did break into and enter a certain mea¡t-house and building, the property of one Jesse B. Baber, then and there being, by forcibly breaking the lock and door thereof, in which said meat-house and building there were then and there, at the time aforesaid, goods, wares and merchandise and other valuable things kept and deposited; and that' the said Stephen Henley so brake into and entered said meat-house and building [512] as aforesaid, with intent then and there to commit a larceny by then and there feloniously stealing, taking and carrying away the goods, chattels and personal property of the said Jesse B. Baber, and five pieces of pork of the value of ten dollars, five pieces of bacon of the value of ten dollars, eighty pounds of pork of the value of ten dollars, and one bag of meal of the value of one dollar, all of the goods, chattels and personal property and valuable things of the said Jesse B. Baber, then and there being found in said meat-house and building, he, the said Stephen Henley, did then and there feloniously steal, take and carry away, contrary,” &c.
It is maintained that the indictment is defective in omitting to charge the offence definitely and with the requisite certainty; that it fails to charge a breaking and entering of the building with intent to commit a felony therein, or to steal the goods, &c., of the said Baber which were at the time kept and deposited in said building. The constituents of the grade of burglary intended to be charged are a breaking and entering a building, in which there are goods, &o., kept, with intent to steal such goods. The indictment alleges the breaking and entering the house of Baber; that there were at the time goods, chattels, &c., kept and deposited therein, and then it alleges the intent with which the house was broken and entered — namely, to commit a felony by taking and carrying away the goods and personal property of said Baber, which are enumerated, and then adds, “ all of the goods, chattels and personal property of the said Jesse B. Baber, then and there being found in said meat-house and building, he, the said Henley, did then and there feloniously steal,” &c. The charge totidem verbis of an intent to steal the goods kept or deposited in said house would not, it is conceived, be more specific or certain than the averment, in the language of the indictment, of a breaking and entering with an intent to steal and carry away the goods of Baber, there being an antecedent averment that the building so burgla-riously entered was the property of Baber, and that goods [513] and chattels were kept or deposited therein. If the defendant is charged with a burglary with intent to steal the goods of Baber, which were then kept in the house so entered, what is the obvious intendment of the allegation that he entered said house with intent to steal the goods of Baber ? What goods but those deposited in the house does the averment apply to? Were they other goods — goods kept elsewhere than in the building which he is charged with having entered with 'intent -to steal ?
But the objection to the indiciment is invalid on another ground. Had there been no averment in so many words of a felonious intent in charging the offence of burglary, the charge of an actual felony in stealing the goods is a sufficient averment of intent. If the indictment charge a burglary with intent to commit a felony, it will be supported by evidence of a felony actually committed. And it seems sufficient, in all cases where a felony has actually been committed, to allege the commission of it, as that is sufficient evidence of intention. (1 Hale, 560; 2 East P. C. c. 15, § 25, p. 514 ; Rex v. Furinal, Run. Ry. 445.) An indictment in this respect may be drawn, says Archibald, in his work on Criminal Pleading and Practice, (vol. 2, p. 329,) in three ways — namely, stating the breaking and entry with intent to commit a felony; stating the breaking and entry and a felony actually committed; or stating the breaking and entry with intent to commit a felony, and also stating the felony to have been actually committed. The latter, he observes, is the' preferable mode and that always adopted in practice; for if you fail to prove the felony committed, you may still convict of the burglary; or if you fail to prove the intent, &a., you may convict of the felony. In Jones v. The State, 11 N. H. 270, Justice Gilchrist, in delivering the opinion, says, it is well settled by the authorities, that in an indictment for burglary, the allegation and proof of the stealing are sufficient, without an averment of an intent to steal. To the same effect, Com. v. Brown, 3 Rawle, 207 ; State v. Ayer, 3 Fost. 301.
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EwiNG, Judge,
delivered the opinion of the couijL fEAIi]
This was an indictment for burglary and i^nte. the sixteenth section of the third article of the|ac$ concern^ ing crimes and punishments, which declares -- person convicted of breaking and entering any stem, stop , booth, tent, warehouse, or other building, or any boatW*V8!wss».' sel, in which there shall be at the time some human being, or any goods, wares, merchandise or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree.” The indictment charges that the defendant “ at, &c., on, &c., feloniously and forcibly did break into and enter a certain mea¡t-house and building, the property of one Jesse B. Baber, then and there being, by forcibly breaking the lock and door thereof, in which said meat-house and building there were then and there, at the time aforesaid, goods, wares and merchandise and other valuable things kept and deposited; and that' the said Stephen Henley so brake into and entered said meat-house and building [512] as aforesaid, with intent then and there to commit a larceny by then and there feloniously stealing, taking and carrying away the goods, chattels and personal property of the said Jesse B. Baber, and five pieces of pork of the value of ten dollars, five pieces of bacon of the value of ten dollars, eighty pounds of pork of the value of ten dollars, and one bag of meal of the value of one dollar, all of the goods, chattels and personal property and valuable things of the said Jesse B. Baber, then and there being found in said meat-house and building, he, the said Stephen Henley, did then and there feloniously steal, take and carry away, contrary,” &c.
It is maintained that the indictment is defective in omitting to charge the offence definitely and with the requisite certainty; that it fails to charge a breaking and entering of the building with intent to commit a felony therein, or to steal the goods, &c., of the said Baber which were at the time kept and deposited in said building. The constituents of the grade of burglary intended to be charged are a breaking and entering a building, in which there are goods, &o., kept, with intent to steal such goods. The indictment alleges the breaking and entering the house of Baber; that there were at the time goods, chattels, &c., kept and deposited therein, and then it alleges the intent with which the house was broken and entered — namely, to commit a felony by taking and carrying away the goods and personal property of said Baber, which are enumerated, and then adds, “ all of the goods, chattels and personal property of the said Jesse B. Baber, then and there being found in said meat-house and building, he, the said Henley, did then and there feloniously steal,” &c. The charge totidem verbis of an intent to steal the goods kept or deposited in said house would not, it is conceived, be more specific or certain than the averment, in the language of the indictment, of a breaking and entering with an intent to steal and carry away the goods of Baber, there being an antecedent averment that the building so burgla-riously entered was the property of Baber, and that goods [513] and chattels were kept or deposited therein. If the defendant is charged with a burglary with intent to steal the goods of Baber, which were then kept in the house so entered, what is the obvious intendment of the allegation that he entered said house with intent to steal the goods of Baber ? What goods but those deposited in the house does the averment apply to? Were they other goods — goods kept elsewhere than in the building which he is charged with having entered with 'intent -to steal ?
But the objection to the indiciment is invalid on another ground. Had there been no averment in so many words of a felonious intent in charging the offence of burglary, the charge of an actual felony in stealing the goods is a sufficient averment of intent. If the indictment charge a burglary with intent to commit a felony, it will be supported by evidence of a felony actually committed. And it seems sufficient, in all cases where a felony has actually been committed, to allege the commission of it, as that is sufficient evidence of intention. (1 Hale, 560; 2 East P. C. c. 15, § 25, p. 514 ; Rex v. Furinal, Run. Ry. 445.) An indictment in this respect may be drawn, says Archibald, in his work on Criminal Pleading and Practice, (vol. 2, p. 329,) in three ways — namely, stating the breaking and entry with intent to commit a felony; stating the breaking and entry and a felony actually committed; or stating the breaking and entry with intent to commit a felony, and also stating the felony to have been actually committed. The latter, he observes, is the' preferable mode and that always adopted in practice; for if you fail to prove the felony committed, you may still convict of the burglary; or if you fail to prove the intent, &a., you may convict of the felony. In Jones v. The State, 11 N. H. 270, Justice Gilchrist, in delivering the opinion, says, it is well settled by the authorities, that in an indictment for burglary, the allegation and proof of the stealing are sufficient, without an averment of an intent to steal. To the same effect, Com. v. Brown, 3 Rawle, 207 ; State v. Ayer, 3 Fost. 301.
[514] The jury were told, in the second, instruction given on the part of the State, that if they found the defendant guilty of burglary as charged, they should assess his punishment to not less than three years in the penitentiary; but that if they also found him guilty of larceny, then they should assess his punishment at five years’ imprisonment in the penitentiary. This instruction was erroneous. The minimum punishment for burglary in the second degree is three years; but the nineteenth section of the third article of the act concerning crimes and punishments declares that, “ If any person, in committing bui-glary, shall also commit a larceny, he may be prosecuted for both offences in the same count, or in separate counts of the same indictment; and on conviction of such burglary and larceny shall be punished by imprisonment in the penitentiary, in addition to the punishment hereinbe-fore prescribed for the burglary, not exceeding five years.” It is very evident this provision only fixes the maximum punishment, and that the jury would be authorized to assess it for the larceny, in addition to the burglary, at a day, month or year, or at any other period, in their discretion, not exceeding five years. The only possible doubt that could exist, we suppose, arises in connecting another provision — which declares that no person shall, in any case, be sentenced to imprisonment in the penitentiary for any term less than two years — with that just quoted, and, considering the one as a qualification of the other, rather than as distinct and independent provisions. It is true, larceny, when committed in committing burglary, is made a felony under the nineteenth section, irrespective of the value of the thing stolen; yet the sense of this section, its language alone considered, is not less clear as to the penalty, and it is only by introducing the words of the general provision referred to (R. C. 1855, p.-, art. 9, § 10,) and considering the two together, that the interpretation assumed in the instruction can be sustained. This is not admissible according to any rule for the construction of penal statutes. A penalty can not be raised by implication, nor should a particular clause un[515] ambiguous in its terms, directing a mode of prosecution and prescribing the punishment for an offence, be so qualified and controlled by a general provision as to impose a penalty not warranted by tlie plain and obvious sense of the former. The general provision in section ten can have effect without applying it to cases like that before us; it was evidently intended to apply to that class of cases where the statute was silent as to the minimum, but prescribed the maximum punishment that might be inflicted by imprisonment in the penitentiary ; and as the least punishment for the grade of burglary charged is fixed by statute, and that is more than two years, that part of the tenth section quoted can have no proper application to larceny committed under the circumstances contemplated by the nineteenth section; for it is only where there is a convictioA of both burglary and larceny that the latter, irrespective of its grade, is punishable as a felony, . and the penalty is m addition to that prescribed for burglary.
Judgment reversed and cause remanded ; the other judges concurring.