State v. . Dozier

ByNum, J. The defendant is indicted for breaking and entering the store house of Washington Spivy, with the intent to steal the goods and chattels of the said Spivy therein ; and the indictment concludes at common law. This was not a criminal offence, at common law, and there is no statute of this State making it a crime. By 24 and 25 Yict., chap. 96, sec. 58, it is made a misdemeanor in England in any one who shall be found by night, armed with any dangerous or offensive weapon, with intent to break or enter a dwelling or other building whatsoever, and to commit a felony therein, or who shall be found by night, having in his possession, without lawful excuse, any pick-lock, key, bit or other implement of house breaking; or who shall be found by night, in any such building, with intent to commit any felony therein. Roscoe Crim. Ev., 321. Whether an obvious defect in the law, should not be supplied by some similar statute in this State, is a matter for the consideration of the Legislature. There is error. Pek CukiaM. Judgment reversed.