Mann v. Commonwealth

• Decision Date: 29 April 1904
• Citation: 80 S.W. 438,118 Ky. 67
• Parties: MANN et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

80 S.W. 438

118 Ky. 67

MANN et al. v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 29, 1904

Appeal from Circuit Court, Mason County.

"To be officially reported."

Thomas Mann and another were convicted of burglary, and appeal. Affirmed.

J. M Collins, for appellants.

N. B Hays and Loraine Mix, for the Commonwealth.

HOBSON J.

Appellants Thomas Mann and Edward Morris, were indicted and convicted of burglary, their punishment being fixed at confinement in the penitentiary for 10 years. The proof shows that they, in company with one Charles Sanders, went from Maysville in a buggy about 10 miles to the house of John B. Farrow, or near it, and there tied their horse, and after entering the house through the window, in the nighttime, proceeded to rob Farrow by taking some money that was in his pants pocket. Some noise they made waked up Mrs. Farrow, who roused her husband, and thereupon the defendants, or one of them, shot Farrow in the arm, and also in the back. The same grand jury that found the indictment for burglary also found an indictment against them for shooting Farrow, and on this last indictment they were tried and convicted. Mann appealed to this court, and that judgment was affirmed. Mann v. Commonwealth, 79 S.W 230. When arraigned on the charge of burglary, they pleaded the conviction under the indictment for the shooting of Farrow, in bar of the proceeding.

While the indictment on the charge of burglary contains some unnecessary averments as to the larceny committed by them after they entered the house, it is a charge only of burglary, the allegations as to the stealing of the money by putting Farrow in fear and shooting him being apparently only added to illustrate the felonious intent with which the defendants entered the house as charged in the indictment. The burglary was complete when the felonious entry was made, and the defendants might have been indicted and convicted therefor, although they had stolen nothing in the house, or committed no other crime after they entered it. The allegations, therefore, of the indictment, as to what they did after they entered the house, are surplusage, although the facts so alleged might be properly given in evidence before the jury, on the trial, to show the intent with which the entry was made. These averments are simply statements of evidential matter, which should have been omitted from the indictment.

Burglary is defined as "the breaking and entering in the night of another's dwelling house, with intent to commit a felony therein." 1 Bishop on Criminal Law, § 559. "If a man in the nighttime breaks into a dwelling house, intending to commit therein some act which in law is felony, he is guilty of burglary, whether he succeeds in doing what he meant or not." 1 Bishop on Criminal Law, § 437. It is insisted, however, for appellants that the defendants entered the house to steal the money, and that the entry of the house, the stealing of the money, and the shooting of Farrow were all one transaction, done in pursuance of one intent and that out of it the commonwealth cannot carve two offenses. In support of this view we are referred to a number of authorities. Thus in Fisher v. Commonwealth, 64 Ky. 211, 89 Am. Dec. 620, where the defendant by the same act and with the same intent took a horse, wagon, and harness, it was held that an acquittal of stealing the horse was a bar to an indictment for the stealing of the wagon and harness, and the rule was applied that out of one transaction committed with the same intent two offenses could not be carved. The same rule was applied in Triplett v. Commonwealth, 84 Ky. 193, 1 S.W. 84, where an acquittal of the offense of burglary was held a bar to a prosecution for a larceny forming part of the same transaction. The court said: "At common law, in an indictment for burglary, a count might be added for the larceny when there had been an actual taking, and it therefore resulted that an acquittal of the burglary with intent to steal constituted no bar to a prosecution for the actual theft. Without the intention to commit a felony, the mere fact of breaking would not, at common law, constitute a burglary; and when the intent to steal is charged, and the party acquitted, it would seem that a subsequent indictment for grand larceny, with the same facts developed on the trial, would be placing the accused in jeopardy the second time for the same offense. The weight of authority, we are aware, is adverse to such a view of the question, but the whole reason and philosophy of the law, as well as justice to the accused, require a different ruling." In Herera v. State (Tex. Cr. App.) 34 S.W. 943, it was held by the Texas court that a conviction for assault with intent to kill was a bar to an indictment for robbery committed in the same transaction. But none of ...