Commonwealth v. Reynolds
| Decision Date | 04 May 1877 |
| Citation | 122 Mass. 454 |
| Parties | Commonwealth v. John Reynolds |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Norfolk. Indictment alleging that the defendant on June 9 1876, at Brookline "with force and arms, a certain building there situate, to wit, the dwelling-house of one Ignatius Sargent, did break and enter, with intent to commit the crime of larceny therein, against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided."
At the trial in the Superior Court, before Putnam, J., the government called two witnesses who testified to a breaking and entering of the house described upon the day named; they were then asked to state at what time the entry was made. The defendant objected to this evidence, on the ground that, if the indictment charged any offence, it must be taken to be that of breaking and entering in the daytime, and that no evidence of the time could be introduced except upon preliminary proof that the time was computed according to mean time at Brookline on the day named. The judge ruled that the defendant could only be sentenced, under this indictment if found guilty, for the offence of breaking and entering in the daytime, but allowed the government to ask the question without any further preliminary proof. The witnesses then stated that one of them looked at his watch at the time of the entry, and that it was then twenty minutes past eight o'clock in the evening. There was also other evidence as to the accuracy of the watch, and that the sun set at thirty-seven minutes past seven on that day, which was admitted against the defendant's objection, but which need not now be stated.
One of the witnesses for the government was asked, on his direct examination, what the defendant, when testifying in his own behalf, upon a former trial of this case, testified as to his connection with this transaction. The defendant objected, but the judge allowed the question to be pet, and the witness stated that the defendant, at such former trial, testified that he was then at this place with the intention of taking away some lead. The defendant afterwards testified in his own behalf and as the witness had stated that he testified on the former trial.
At the close of the evidence, the defendant asked the court to direct a verdict of acquittal, upon the ground that there was no competent evidence that the breaking and entering charged took place in the daytime; but the judge declined to direct a verdict as requested, and instructed the jury, that, upon the evidence, they were to say whether or not the offence was committed within one hour after sunset, mean time, at Brookline.
The evidence showed that the dwelling-house in question was owned by Ignatius Sargent; that it had been occupied by a tenant up to July 8; that on that day the tenant had moved out, so that it was unoccupied on July 9; that some of the tenant's goods remained in the building at the time of the breaking, and the key of the dwelling-house was not delivered up to the said Sargent by the tenant until some days after. On this evidence, the defendant contended that the jury could not find that the dwelling-house was the dwelling-house of Ignatius Sargent. The judge ruled otherwise.
After a verdict of guilty, the defendant moved in arrest of judgment, for the reason that "the indictment charges no offence under the laws of the Commonwealth of Massachusetts, and this court has no jurisdiction to sentence him under the same, as it contains no allegation that the breaking and entering set forth was committed either in the daytime on the one hand, or in the night-time on the other, and no averment showing whether it was committed in the daytime or in the night-time. The judge overruled the motion and, with the consent of the defendant, reported the case for the consideration of this court. If the rulings were correct, the verdict was to stand; otherwise, a new trial was to be ordered.
Judgment on the verdict.
M. Williams, Jr., for the defendant.
W. C. Loring, Assistant Attorney General, (C. R. Train, Attorney General, with him,) for the Commonwealth.
It is provided in the Gen. Sts. c. 161, § 12, that whoever breaks and enters a building in the night-time with intent to commit the crime of larceny shall be punished by imprisonment in the state prison not exceeding twenty years and in § 14, that breaking and entering with like intent in the daytime shall be punished by imprisonment in the state prison not exceeding five years, or by fine and imprisonment in jail. These two sections impose different punishments, for distinct species of the same general crime, according as the offence is committed in the daytime or the night. The breaking and entering with intent to commit...
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