State v. Carrier

Reeve, J. The question in this ease is, whether it 5 burglary, to break open and enter the cabin of a vessel, it: the night season, with intent to commit a felony 1 On thi, subject, no light can be collected from the English law ; for unquestionably', such a transaction is not burglarious under that law ; it depends wholly on our own statute, which lu extended the crime of burglary to breaking and entering a. shop, wherein goods, wares and merchandize are deposited, with an intent to commit a felony. The statute has no., defined burglary, but left it as it was at common law ; only, extending to shops, in which, by the common law, burglar, could not be committed, unless so nearly adjoining the, mansion-house, as to he within the curtilage, and in point of law, considered as part of the mansion-house. But, by on. statute, it is burglary to break open burglariously a shop, in which goods, wares, &c. are deposited ; that is, to break it opea and enter therein, in the night season, with an intern to commit a felony, let the shop be situated as it may. This case depends upon the true construction of the tern: shop. If a cabin, in which goods, wares and merchaodiw arc deposited, can with propriety be deemed a shop, then hsp-glary may be committed therein. If this was altogether ⅜ new question, I think some doubt might be enter!.lined whether it could be embraced under the term shop ; lml: there has been, ever since the enacting of the statute, an uniform construction by the Superior Court, that, such is a shop. Such, construction has been known to the ie:.jsi;:-ture, and by their total silence on the subject, we may ■ orly infer their approbation of it. One thing is clear, that ' .'mb cabin is as much within the reason of the law, as a shop, as commonly understood. It is as much exposed to burglarious depredations as any shop. - The turpitude of the crime is su. great in one case as the other, and the evil to the public is the. same; and if a different construction should now . [133] would seem reasonable, that a statute should be enacted to make it burglary, thus to break and enter a cabin, where goods, wares, &c. are deposited ; otherwise, the same protection oi' the law would not be extended to such property, when deposited in a cabio, as when deposited in a shop. The legislature finding, that (he courts have considered a cabin, a shop, within the intent of the law, are satisfied with 51; and therefore, have matte no law extending burglary, in the terms of it, to a cabin. When I take into view the evil which the legislature intended to punish, and that this is as great when a cabin is broken, as when any other shop is broken, and that there has been an uniform construction, that such cabin is a shop, I am of opinion, that the charge was correct, and would not advise a new trial. Mitchell, Ch. J., Trumbull, Edmond, and Baldwin, Js. severally concurred in this opinion. Ingersoll, J. having' been of counsel in this case, did not judge. Smith,!. By statute, the crime of burglary maybe committed by breaking open a shop, wherein goods, wares and merchandize are deposited, the same as by breaking open a dwelling-house. The only question involved in the present case, is, whether the cabin of a vessel may be considered/either a shop or dwelling-house, within the meaning of the statute ? I have great occasion to suspect the soundness of my own judgment, in this case, finding my opinion not to be supported by any of my brethren. But, I cannot persuade myself, that the cabin of a vessel is either a shop, or a dwelling-house. These are all buildings perfectly distinct from each other, with appropriate names, which are well understood ; and although each may be built of similar materials, and occasionally used for similar purposes, yel, their peculiar shapes and appearance, as well as the great purposes for which each is built and used, leave no room for mistake, in the ordinary [134] ase of language. No man understands us to mean a cabin of a vessel, when we speak either of a shop or a dwelling-house;- in England, it has never been considered burglary to break open the cabin of a vessel. They have no statute., I am aware, making it burglary to break a shop in the night reason; but the argument is much stronger in favour oi calling a cabin, a dwelling-house, than a shop, because it is much more generally used for the dwelling of persons than the storing of goods; yet, in that country, no man ever supposed, that the cabin of a vessel, could be called a dwelling-house, in which burglary could be committed. It was said, by the counsel, that there has been a course of decisions in the Superior Court, extending the statute to all offences within its mischief, and that many convictions, have been had, for breaking open cabins, and school-houses, and paper-mills ; and that this practice has passed under the eye of the legislature, and received its tacit assent. The principle of law' involved in this argument, is of very extensive application, and ought to be fully considered, before adopted : It will extend to all other penal statutes, as well as that punishing burglary ; ami it will extend to all subordinate jurisdictions, as well as to the Superior Court, and the Supreme Court of Errors. What, then, is the principle contended for ? It is, that a statute highly pena!, may be extended to every offence, which, in the opinion of the court, comes within its mischief, without regard to its tetter. That such a principle should be adopted by this court, is to me, a subject of regret. I cannot admit, that any course of adjudications by the Superior Court, however long and uniform, can form an insuperable objection to a revision before this Court. The Supreme Court of Errors was constituted for the sole purpose of correcting the errors of the Superior Court; and it is a strange argument, that the number and uniformity of the errors of that court, transforms them into a correct procedure. If such an argument has validity, the Superior Court will, of course, settle most of our criminal law; for. [135] generally, no person will be found able to bring up a question, which is ruled against a prisoner, until several decisions will be bad on the point, before that court. I deem it pe» culiarly favourable loa correct result, Shat no such decision, has had the sanction of this Court. As to any supposed acquiescence, or indirect sanction of the legislature, I would remark, that the legislature, before any of these decisions had taken place, constituted the Court of Errors to revise and correct the erroneous proceedings of the Superior Court; and if this subject happened to occur to any honourable gentleman, while on the seat of legislation, he doubtless felt a confidence in this court; and probably concluded, that the common law, in the construction of statutes, would be fully regarded, a,t least, in the court of dernier resort. But, is any omission or tacit assent of the legislature, to have the effect to alter the rule of construing statutes ? Are we to refuse to construe according to law, statutes already made, because the legislature neglects to make another ? Besides, no statute could lie framed, which would be adequate to remove the evil in its full extent; unless, it be one of quite a novel complexion ; and which, in my opinion, must be drawn nearly in the following words : “Be it enacted, that hereafter, the Superior Court and Supreme Court of Errors, shall construe penal statutes strictly, according to a well known principle of the common law.” Swift. J., said he should have concurred in Hie opinion delivered by judge Smith-, if this had been a new case ; but there had been an uniform course of adjudications, on this subject, in the Superior Coart, for fifty years, aad he would not break in upon it. New trial not to be granted