Joseph Tully vs. The Commonwealth, 4 Met. 357

Shaw, C. J. The indictment, which is the foundation of the first judgment’now sought to be reversed, charges the prisoner with the offence, which for convenience may be denominated burglary'in the second degree. It is founded upon Rev. Sts. c. 126, § 10. The next preceding

section prescribed the punishment of death against any person who should break and enter any dwellinghouse, in the night time, with intent to commit the (rime of murder, rape, robbery, larceny, or any othei felony, &c. being armed. This has been since altered to punishment by imprisonment in the state prison for life, by St. 1839, c. 127. Immediately following the foregoing provision of the revised statutes comes the

section on which the prisoner was indicted; and it describes the crime in the same terms, except, “ the offender not being armed, as charged in the present indictment. The prisoner was convicted, and sentenced to three years’ hard labor and five days’ solitary imprisonment in the state prison. The error assigned is, that the act is not alleged to have been done “ burglariously.” The court are of opinion that the judgment is not, for this cause, erroneous.

It is to be observed, that in neither of these sections of the revised statutes — the one making the highest degree punishable with death, and the other punishable by imprisonment not exceeding 20 years — have the legislature used the term burglary, or burglarious. Each

section embraces all the ingredients necessary to constitute the crime intended to be punished. Each of the facts and circumstances, necessary to constitute this statute offence, is alleged against the prisoner, in the present indictment. We think the distinction is this : When the statute punishes an offence, by its legal designation, without enumerating the acts which constitute it, then it is necessary to use the terms which technically charge the offence named, at common law. As for instance ; the Rev.

Sts. c. 125, § 1, declare that every person, who shall commit the crime of murder, shall suffer the punishment of death. Here the statute does not enumerate the acts which constitute murder ; it refers for that to the common law. In such cases, the forms and technical terms, used at common law to describe and define the murder, must be used. But we think this is not necessary, when the statute describes the whole offence, and the indictment charges the crime in the words of the statute. This judgment, therefore, is affirmed.

The second judgment against the prisoner is upon an indictment in which he is charged with stealing property of less value than $ 100, in a dwellinghouse, in the night time. On conviction, he was sentenced to solitary imprisonment three days, and afterwards to haid labor for two years, in the state prison. It was decided in the case of Hopkins v. The Commonwealth, 3 Met. 460, that stealing from a dwellinghouse in the night ume is not made an aggravated larceny by the Rev. Sts. c. 126.

The result is, that the prisoner could be sentenced for the larceny only ; and the property being under $ 100, the imprisonment could not, by law, exceed one year. Rev. Sts. c. 126, § 17. This judgment being for a longer period, is in that respect erroneous, and must be reversed. The third judgment, now brought before us, is also upon an indictment for stealing in the night time, in a dwellinghouse, property of less value than $ 100 ; and it presents distinctly the question whether solitary imprisonment is a part of the entire term, for which a prisoner, convicted of stealing less than $ 100, is liable.

Being of opinion that it must be so considered, the sentence for three days more was not warranted by law This judgment is therefore erroneous, and must be reversed.