Home JOSSLYN v. COMMONWEALTH

47 Mass. 236, 6 Met. 236

March, 1843

Middlesex County

Present: SHAW, C. J.

In an indictment on St. 1839, c. 31, which prescribes the punishment for breaking and entering, in the night time, a shop adjoining to a dwelling-house, "with intent to commit the crime of larceny," it is not necessary to aver the intent in the words of the statute: It is sufficient to aver that the defendant broke and entered the shop with intent to steal, take and carry away the goods and chattels of A., then and there in the shop being found.

A count in an indictment, which charges the breaking and entering, in the night time, of a shop adjoining to a dwelling-house, with intent to commit a larceny, may be joined with a count which charges the stealing of goods in the same shop; and the defendant, if found guilty generally, may be sentenced for both offences. But if the breaking and entering, and the actual stealing, are charged in one count, only one offence is charged, and the defendant, on conviction, can be sentenced to one penalty only.

Where one of two counts in an indictment is bad, and the defendant is found guilty and sentenced, generally, the presumption of law is, that the court awarded sentence on the good count; and the sentence is not erroneous, if it is warranted by the law applicable to the offence charged in that count.

WRIT OF ERROR. At the June term, 1842, of the court of common pleas in the county of Middlesex, the plaintiff in error was found guilty by the jury, and was sentenced to one day's solitary imprisonment, and to confinement afterwards, at hard labor, for the term of four years, in the state prison, on an indictment which contained the two following counts: 1. That he, "on the 1st of February 1842, with force and arms, at Waltham, &c., the shop of one Charles W. Fogg; there situate, adjoining to a certain dwelling-house, in the night time did break and enter, with intent the goods and chattels of said Fogg, then and there in said shop being found, feloniously to steal, take and carry away," &c. 2. That he "afterwards, to wit, on said

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1st day of February 1842, with force and arms, at Waltham, &c., one English gold lever watch, one French gold anchor lever watch, one gold Lepine watch, four silver cased watches, nine old silver watches, sundry silver spoons, and sundry articles of jewelry and cutlery, all of the value of $ 650, of the goods and chattels of one Charles W. Fogg, then and there in the shop of said Fogg being found, feloniously did steal, take and carry away," &c.

Among the numerous causes assigned for error, were the following: "That it does not appear that said defendant entered said shop with intent to commit the crime of larceny, or any other felony: Because two offences, differing in degree, are joined in the same said indictment: That it does not appear what was the value of the articles said to be stolen, in the second count of said indictment: That it does not appear by the record, on which of the two offences, charged in said indictment, the jury found the defendant guilty: That value is given to the articles, alleged to be stolen, collectively, and that value is essential to the offence: In that the said Josslyn was found guilty of two offences in the same indictment, and sentenced thereon at the same time."

B. F. Butler, for the plaintiff in error. The first count in the indictment should have alleged, in the words of St. 1839, c. 31, on which it is founded, an "intent to commit the crime of larceny," as was done in Commonwealth v. Tuck, 20 Pick. 358 , or should have set out facts that showed an intent to commit a technical larceny. The mere charge of an intent to steal "goods and chattels," is too general. 1 Stark. Crim. Pl. (2d ed.) 242. 1 Hale P. C. 107. Commonwealth v. Morse, 2 Mass. 131 . 1 Chit. Crim. Law, 281, 282. 2 Hawk. c. 25, ยง 60 Foster C. L. 424.

Two offences, of different kinds and degrees, cannot be joined in the same indictment. Archb. Crim. Pl. (3d Amer. ed.) 61 1 Stark. Crim. Pl. (2d ed.) 43. The State v. Nelson, 8 N. Hamp. 163. Devoe v. Commonwealth, 3 Met. 323 . Commonwealth v. Hope, 22 Pick. 1 .

In the first count, no value is given to the goods and chattels;

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and in the second, only the collective value of all the articles is averred. This is erroneous. Bac. Ab. Indictment, G. 3. 1 Chit. Crim. Law, 235, 236. Rex v. Forsyth, Russ. & Ry. 274.

As the verdict was general, it is void, if either of the counts is bad, and the judgment on the verdict is erroneous. For the defendant cannot be convicted of two offences. Commonwealth v. Tuck, 20 Pick. 356 .

S. D. Parker, for the Commonwealth. The allegation in the indictment is equivalent to an allegation of an "intent to commit the crime of larceny." It would be impossible to aver what the prisoner intended to steal. He might not himself have known.

It is the constant practice, and is warranted by authorities, to join counts for greater and smaller offences. 1 Chit. Crim. Law, 252, 253. The State v. Crank, 2 Bailey, 72. Carlton v. Commonwealth, 5 Met. 532 . The People v. Rynders, 12 Wend. 426.

The averment, in the second count, of the collective value of the articles stolen, is sufficient. But if otherwise, yet the court will intend that the sentence was on the first count; and that count would have warranted a much more severe sentence. Grant v. Astle, 2 Doug. 730. Regina v. Ingram, 1 Salk. 384.


Shaw, C. J. The object of the present writ of error is to reverse a judgment of the court of common pleas in the county of Middlesex, upon an indictment charging the prisoner with breaking and entering, in the night time, a shop adjoining a dwelling-house, with an intent to commit larceny; and in another count, with a larceny. Several objections to the record, in respect to the holding of the court, defects in not naming the grand jurors, who found the bill, and other formal defects, have been considered and overruled, in the case of Turns v. Commonwealth, (ante, 224.)

The first count in this indictment is founded on St. 1839, c. 31, which enacts that "every person, who shall break and enter, in the night time, any shop or warehouse, adjoining to or occupied with a dwelling-house, with intent to commit the crime of murder, &c., larceny, or any other felony, shall be punished by imprisonment in the state prison, not more than 20 years."

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The objection to the first count is, that it does not allege that the prisoner broke and entered the shop, with intent to commit larceny, or other felony, and so does not bring the case within the statute. The averment is, that he broke and entered the shop, the goods of said Fogg, then and there being found, feloniously to steal, take and carry away. This is a sufficient averment of an intent to commit larceny. It was the definition of larceny, instead of the word. The word "larceny" is not one of those terms of art, which it is indispensable to use, in an indictment, and as a substitute for which no synonymous word, and no description or definition, is admissible. Feloniously to steal goods is larceny.

Nor is it necessary to describe the goods intended to be stolen. A general intent to steal goods would complete the offence; and therefore the averment of such intent, without more, is sufficient to charge it. And the rule would be the same, if in fact there were no goods, or no goods of Fogg, in the shop. The crime was complete, by the breaking and entering with an intent to steal goods.

The next objection is, that there were two distinct offences charged, in two distinct counts, which is irregular. Without considering whether, if this is an irregularity, for which a court would, on motion, quash the indictment, or put the prosecutor to his election on which count to proceed, ( Commonwealth v. Tuck, 20 Pick. 362 ,) we think that, within certain limits, different offences, of the same nature, may be stated in different counts of an indictment, when the same mode of trial applies, and the same judgment is to be given. Cases of Carlton and Booth, 5 Met. 532 , 535. It has been supposed that these cases are inconsistent with the decision of Commonwealth v. Hope, 22 Pick. 1 , in which it was held, that the charge of breaking and entering a house, and actually stealing therefrom, though in effect charging two distinct offences, was to be punished only as one offence of breaking and entering with an intent to steal. That case was decided on the ground, that where breaking and entering are averred, and an actual stealing at the same time, all charged in one count, the charge of stealing is substituted

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for an averment of an intent to steal; a mode of charging which is warranted by the precedents there cited. We think the distinction to be this; that where the breaking and entering, and actual stealing, are charged in one count, there is but one offence charged, and there can be but one penalty adjudged. But where they are averred in distinct counts, as distinct substantive offences not alleged to have been committed at the same time, and as one continued act; if, in other respects, they are such offences as may be joined in the same indictment, the defendant may be convicted on both, and a judgment rendered, founded on both.

Another ground relied on is, that the second count in this indictment was bad and insufficient, because it did not more precisely state the description, number and value of the articles alleged to be stolen. Suppose this count bad, (a question which we have not found it necessary to decide,) the question is, whether, if there be several counts, and one bad, and a general judgment thereon, it can be reversed for error. If the verdict were general, and the judgment were in terms rendered on the good count, the judgment would be undoubtedly good. But the question is, whether it is so, when the judgment is general. We think the rule is, that if there be a good count, and one which alone would be sufficient to warrant the judgment, if it had stood alone in the indictment, the judgment would be good. The punishment is awarded, by the court, upon a view and knowledge of the facts alleged and proved, and the presumption of law is, that they adjudged upon the good count only. This rule is a reasonable one, and well established by the authorities. Brown v. Commonwealth, 8 Mass. 59 . Kane v. The People, 3 Wend. 363. Jennings v. Commonwealth, 17 Pick. 80 .

In the present case, the punishment might have extended to twenty years' imprisonment, on a conviction upon the first count, had it stood alone. St. 1839, c. 31.

Judgment affirmed.