State v. Kane
| Decision Date | 28 April 1885 |
| Citation | 63 Wis. 260,23 N.W. 488 |
| Parties | STATE v. KANE AND OTHERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Milwaukee county.Asst. Atty. Gen. H. W. Chynoweth and J. M. Clarke, for the State.
W. H. Austin, for respondents.
The defendants were tried and found guilty on the following information, to-wit: That they on, etc., and at, etc., “the store building of Henry Kosh, Jr., as the administrator, etc., there situate, in the night-time of the same day, then and there unlawfully, feloniously, and burglariously, did break and enter, with intent then and there the goods, chattels, and property of said Henry Kosh, Jr., as administrator, then and there in the said store building being found then and there feloniously and burglariously to steal, take, and carry away, contrary to the statute,” etc. Pending a motion in arrest, the learned judge of the circuit court reported the case to this court as far as was necessary to present certain questions of law arising therein, by virtue of section 4721, Rev. St., for its decision. The questions so propounded are as follows: (1) “Whether or not it is incumbent for the state, in charging an offense under section 4409 of the Revised Statutes for 1878, to allege the negative provided for in said section, and contained in the language ‘not adjoining or occupied with a dwelling-house.’ ” (2) “Whether said language is a material part of the description of the offense provided against in said section.” (3) “Whether or not this court can properly sentence said defendants upon said information under said section.” (4) “Whether or not said information properly charges any offense known to the law.”
The several kinds or degrees of the general offense of burglary, as defined by our statute, are as follows: In section 4407, breaking and entering any dwelling-house in the night-time, with intent, etc., any person being lawfully therein, and the offender being armed with a dangerous weapon, etc. In section 4408, breaking and entering, in the night-time, any dwelling-house, with such intent, etc., not being armed with a dangerous weapon, etc. In section 4409, breaking into and entering, in the night-time, any office, shop, or warehouse, or any other building, not adjoining or occupied with any dwellinghouse, with such intent. In section 4410, entering, in the night-time, without breaking, or breaking and entering, in the day-time, any dwelling-house, or out-house thereto adjoining and occupied therewith, or any office, shop, etc., with such intent. For the first grade of the offense as above defined the punishment is imprisonment in the state prison from five to fifteen years; for the second, from three to eight years; for the third, from one to five years; for the fourth, from one to three years, or in the county jail from six months to one year. Section 4411 does not create any new or other grade of burglary, but establishes only a rule of evidence by making any unlawful entry of a dwelling-house, or other building, with such intent, a breaking and entering. It is evident that this information was not drawn and cannot stand under any of these sections except section 4409, and the only ground taken by the learned counsel of the defendants why it cannot stand under that section, and does not describe the grade of burglary therein defined, is that the negative words, “not adjoining or occupied with any dwelling-house,” are not stated in the information as an allegation of fact in the necessary description of the offense. Burglary at common law is “the breaking and entering into a dwelling-house, or a building immediately connected therewith, in the night, with intent to commit a felony.”
The grade of the offense established by and described in section 4409 of our statute was unknown at the common law, and is a lower grade of the offense, by reason of its making a certain kind of burglary consist of breaking and entering a building which is neither a dwelling-house nor one immediately connected therewith; or, in the words of the section, a building “not adjoining or occupied with any dwelling-house,” with such intent. In one sense it is proper to say that the above section creates and defines a new and distinct offense, different from burglary at common law, by extending the common-law offense to embrace buildings other than those mentioned therein. But, in another and stricter sense, it creates only a lower grade of the common-lawoffense of burglary. Murder, at common law, in the same sense, is defined by general words of apt and strict meaning. But our statute, as well as the statutes of other states, have established and defined different grades of murder, as in the first, second, and third degrees, each having its own special elements, and yet in each case it is murder. This distinction must be borne in mind when considering the necessity of alleging negative words, found in the statutory definition of the offense, or the different grades of the same general offense created by statute.
The rule asserted by the learned counsel of the defendants is undoubtedly correct, that every circumstance necessary to an exact description of the offense as defined by the statute creating it must be critically set forth. In re Booth, 3 Wis. 157. But this rule is limited to entire and distinct offenses created and defined by the statute. In such cases the indictment or information must fully and particularly describe the offense in all its essential elements or it is not described at all. But this rule cannot apply to different grades of the same general offense, where the higher grade is made to consist of certain special particulars or circumstances affirmatively expressed as the necessary ingredients of the offense, and a lower grade thereof is made complete by excluding certain elements of the higher grade by negative words. By charging the lower grade, and leaving out or omitting such elements of the higher, is a full and complete allegation of the lower grade, without alleging specifically that they are omitted, by the use of such negative words as the statute uses only for the purpose of creating it. The distinction is clearly apparent, although in some cases it has been either misapprehended or lost sight of. To illustrate:
In charging common-law burglary, or burglary under sections 4407 and 4408, the breaking and entering a dwelling-house, or building immediately connected therewith, or adjoining and occupied therewith, must be explicitly alleged. If, however, the information charges the breaking and entering of a building which is not alleged therein to be a dwelling-house or a bulding so connected therewith, and all the essential ingredients of a lower grade of burglary are alleged, then it is clear that the lower grade is fully and completely...
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Pooler v. State
...rule, no convictions could be had in such cases, however guilty the accused might be, unless his intention was consummated.” State v. Kane, 63 Wis. 267, 23 N. W. 488. The same construction is manifestly applicable to Rev. St. § 4409, under which the defendant was prosecuted. As it was not n......
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Gillotti v. State
...charging the lesser of several degrees of crime of the same general character, has been adopted by this court and notably in State v. Kane, 63 Wis. 260, 23 N. W. 488. This general rule is there established: “Every circumstance necessary to an exact description of the offense as defined by t......
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State v. Egan
...This seems to be the rule in Massachusetts under statutes similar to our own. Commonwealth v. Reynolds, 122 Mass. 454;State v. Kane et al., 63 Wis. 260, 23 N. W. 488. Under the rule laid down in Commonwealth v. Reynolds, supra, in charging the lower grade of offense, it is unnecessary to ne......
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Nichols v. State
...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......