State v. . Outlaw

PeaesON, C. J. As the bill of indictment contains two counts — one charging the house to be the dwelling ing house of John W. Cunningham, and the other charging the house to be the dwelling house of James E. Harris — the question as to the proper inode of charging the ownership of the house does not arise. A man may^the owner of several dwelling houses, one in which he lives, one in which his domestic servants live, and one in which his clerks or other employees live, and it is settled by the authorities referred to in the text books, that if the servant, clerk or employee has no estate in the house as lessee or tenant at will or at suffrance, it should be charged to be the dwelling house of the, owner. In such cases, when the house is outside of the curtilage, the more accurate mode of charging the offence is ‘‘ a dwelling house the property of,” &c., for instance in our case. The dwelling house of Cunningham was not the house broken into, but it was a dwelling house of his occupied by his clerk, and the proper description would have been, “ a dwelling house the property of John W. Cunningham, then occupied by one James E. Harris.” Suppose a manufacturing company or a railroad company .own dwelling houses in which their agents and employees live; it would be incongruous and absurd to charge it as the dwelling house of the company, for although the company has a name, it can have no local habitation. Provided this was a dwelling house, the inaccuracy in using the definite article “ the ” instead of the indefinite article “ a ” is not, according to the authorities, for the purpose is to describe the house, and this is done by charging it to bo “ the dwelling house of Cunningham,” although it could have been *602 'more accurately described as a dwelling bouse of Cunningham, occupied by Harris. This case is distinguishable from State v. Jenhin-s, 5 Jones, 430. There the owner occasionally slept in the store room on the counter; here the clerk had for four years occupied the counting room as his “ regular sleeping •apartments The case of Jenkins is made to turn on this distinction, but it is there taken to be settled law that a store house ■may be made a dwelling house “ by being used habitually and ■usually by the owner or his clerk as a place for sleeping, but not by being used occasionally only for such a purpose.” Thus showing that the gist of the crime of burglary is a protection for the place where a man sleeps, and not the place where he transacts business or the place where he takes his meals, and relieving our ease from any difficulty because of the fact that the clerk took his meals at the mansion house of Mr. Cunningham. Had the case stopped here we would have been left to draw the natural inference that the clerk made his counting room “ his regular sleeping apartment,” for the reason that in the family arrangement it was convenient for him to do so, and for the further reason that his presence would be a protection to the store, and his sleeping there would make it a dwelling house, and as such put it under the peculiar proteetion of the law. But the case does not stop here. It sets out “ upon the examination, the witnesses Terrel and Cunniugham stated that Harris had no interest in the premises and slept in the store house just to take care of the premises," though he slept there regularly.” Upon this statement the counsel of the prisoner made a very ingenious and forcible argument to bring the case within the principle of Brown's case, where the fact of a servant having slept in a barn the night it was broken into, and for several nights before, being put there for the purpose for thieves, did not make the barn a dwelling house; and of Smith's case, where the fact of a porter lying in a warehouse to watch goods, being only for a particular purpose, did not make the warehouse a dwelling house, so as to make the *603 breaking and entering thereof burglary. See 2 East. Pl. Crim. 497, 501. A majority of the Justices are of opinion that the words “just to takeGare of the premises,” taken in connection with the words “ though he slept there regularly,” mean that he slept there regularly in order to take care of the goods; in other words, he made it a dwelling house “just to take care of the premises,” and if you will have it, solely for that purpose. But he did make it his regular sleeping apartment, and it thereby became a dwelling house. Two of the Justices have grave doubts and conceive it to be a stretch of the law, not in favor but against life. Pursuing the precedents in the English Courts when the Jndges'are divided in opinion, we will recommend to his Excellency the Governor to commute the sentence of death into a sentence of confinement in the Penitentiary for ten years, or such other time as may seem to him will be an adequate punishment for the crime of larceny, provided that the prisoner when called on at the next term of the Superior Court to say “ why the sentence of death shall not be pronounced,” will plead the grant of commutation as a bar of the penalty of1 death, and submit to such judgment as the Court may render. There is no error. Let this opinion be certified to the end that such proceedings may be had as are agreeable to law. Pee CURIAH. Judgment accordingly.