Nichols v. State

• Decision Date: 22 March 1887
• Citation: 32 N.W. 543,68 Wis. 416
• Parties: NICHOLS v. STATE.
• Court: Wisconsin Supreme Court

68 Wis. 416

32 N.W. 543

NICHOLS

v.STATE.

Supreme Court of Wisconsin.

March 22, 1887.

Error to circuit court, Jackson county.

The plaintiff in error was tried and convicted of the offense charged in the second count of the information, to the effect that July 25, 1885, at the county of Jackson, in said state, the said Nichols, the freight and express car of the American Express Company there situate, then and there unlawfully, feloniously, and burglariously did break and enter, with intent then and there the goods, chattels, and property of the said American Express Company, then and there in the said freight and express car being found, then and there feloniously and burglariously to steal, take, and carry away, against the peace and dignity of the state of Wisconsin. Upon the verdict of guilty being returned, the prisoner moved the court in arrest of judgment therein, for the reason that the information did not charge the prisoner with any criminal offense known to the law in this state; which motion was denied, and the prisoner excepted. Judgment was thereupon rendered, and sentence imposed upon the prisoner to the effect that he be confined at hard labor in the state's prison for the term of three years. From that judgment the prisoner brings this writ of error.Turner & Barney and Carl C. Pope, for plaintiff in error.

C. E. Estabrook, Atty. Gen., for defendant in error.

CASSODAY, J.

There is undisputed testimony on the part of the state to the effect that Saturday, July 25, 1885, the plaintiff in error was stopping at a hotel in Black River Falls, having his name registered as W. H. Eldredge, and a room assigned him opposite thereto. He had then been there about three days. In the afternoon of the day named he had a box or chest taken from the depot to his room, weighing about 150 pounds. No evidence was given as to what was in it. About 3 o'clock in the afternoon of the same day he arranged with the local express agent for the sending of a box to Chicago, then at the hotel, and represented by him as weighing about 225 pounds. By his prearrangement, the box was brought to the depot just in time for the 7:50 P. M. Chicago train, and was shipped in the express car thereon by the local agent, as directed. Soon after the starting of the train, there seems to have been a suspicion as to the contents of the box. This suspicion was increased as telegraphs were received at different stations from Black River Falls respecting the box. Finally, being convinced by such dispatches that there was a man in the box, the train-men telegraphed forward to Elroy to secure the presence of an officer on the approach of the train to make the arrest. On reaching Elroy, in the night, this box in the express car was opened, and the plaintiff in error was found therein, with a revolver, billy, razor, knife, rope, gimlet, and a bottle of chloroform. There was also evidence tending to show that there were packages of money in the custody of the express agent on the car; that such agent had an assistant as far as Elroy; that from there to Chicago such car was usually in the charge of the man; that after the arrest, and when asked his object in being thus shipped in the box, the prisoner voluntarily admitted, in effect, that he had considered his chances carefully; that he went into the thing as a matter of speculation; that he needed money, and needed it quickly; that he expected to get fully fifty thousand dollars; that had he passed out of Elroy he would have got off with the money; that, in a case of that kind, if a human life stood in his way, it did not amount to a snap of the finger.

The motion in arrest of judgment was based upon the dissimilarity in the language employed in the second count in the information, under which the plaintiff in error was convicted, and the statute under which he was prosecuted.

1. That statute provides, in effect, that “any person who shall enter in the night-time without breaking, or shall break and enter in the day-time, any * * * railroad freight car, or passenger car, with intent to commit the crime of murder, rape, robbery, larceny, or other felony, shall be punished by imprisonment in the state prison not more than three years, nor less than one,” etc. Section 4410. Under this statute, such entry, with such intent, in the night-time, even without breaking, is sufficient to constitute such offense. Rolland v. Com., 82 Pa. St. 325. But the allegation is that he “did break and enter with intent,” etc. Had the allegation been that he “did break and enter, in the night-time,” with such intent, then the case would have come under the preceding section. That would have been for an offense of a higher grade, and could only have been committed in the night-time. Manifestly there was no intention of the pleader to prosecute under that section. His evident purpose was to charge the offense prescribed in the section quoted. That could be done by charging that it was committed in the night-time without breaking. But if it occurred in the day-time, then it was necessary to charge a breaking in order to bring the case within the section. If it occurred at all it necessarily occurred either in the night-time or in the day-time. To charge that the offense was committed in the day-time would only have been another way of charging negatively that it was not committed in the night-time, so as to prevent its coming under the preceding section, which prescribed the higher offense. But such negative allegation would have been unnecessary. State v. Kane, 63 Wis. 260, 23 N. W. Rep. 488. Since the count in question charges the breaking as well as the entry, and fails to charge that it was in the night-time, it does, in effect, charge that he did break and enter in the day-time. Com. v. Reynolds, 122 Mass. 454;Butler v. People, 4 Denio, 68. “For this purpose,” said Blackstone, “anciently the day was accounted to begin only at sunrising, and to end immediately upon sun-set; but the better opinion seems to be that if there be daylight or crepusculum enough begun or left to discern a man's face withal, it is no burglary. But this does not extend to moonlight.” 4 Bl. Comm. 224. Under this definition, we must conclude from the proof that the entry was in the day-time.

2. The question recurs whether the proofs show that there was a breaking in fact, within the meaning of the statute. Certainly not in the sense of picking a lock, or opening it with a key, or lifting a latch, or severing or mutilating the door, or doing violence to any portion of the car. On the contrary, the box was placed in the express car with the knowledge, and even by the assistance, of those in charge of the car. But it was not a passenger car, and the plaintiff in error was in no sense a passenger. The railroad company was a common carrier of passengers as well as freight. But the express company was exclusively a common carrier of freight; that is to say, goods, wares and merchandise. As such carrier, it may have at times transported animals, birds, etc., but it may be safely assumed that it never knowingly undertook to transport men in packages or boxes for special delivery. True, the plaintiff in error contracted with the local express agent for the carriage and delivery of such box, but neither he, nor any one connected with the express car or the train, had any knowledge or expectation of a man being concealed within it. On the contrary, they each and all had the right to assume that the box contained nothing but inanimate substance,--goods, wares, or merchandise of some description. The plaintiff in error knew that he had no right to...