State v. Trapp

• Decision Date: 22 July 1882
• Citation: 17 S.C. 467
• Parties: STATE v. TRAPP.
• Court: South Carolina Supreme Court

17 S.C. 467

STATE v. TRAPP.

Supreme Court of South Carolina.

July 22, 1882

1. In a case of burglary, the dwelling house was occupied by husband and wife, but leased by the wife, who had a separate estate and the goods in the house belonged to the wife. Held , that the indictment properly laid the ownership of the house in the wife.

2. The ownership might properly have been laid in either husband or wife.

Before COTHRAN, J., Fairfield, February, 1882.

To the statement of the case contained in the opinion of this court should be added so much of the report of the presiding judge as is not there stated. It was as follows:

It was earnestly contended by the prisoner's counsel that the offence charged in the indictment was against the habitation and as such affected the matter of possession rather than the right of property; that the constitution of 1868 touching the rights of married women as to property held or acquired by them separately, as well as the Act of Assembly upon the subject, do not operate upon or affect the family relation which remains as at common law; that the possession being joint, and the husband's domiciliary right being thus unquestioned, as the head of the family he has not only the right to fix and determine but to control the matter of family domicile. The purpose of this report, and of the appeal which it is intended to forward, is to present sharply the single matter hereinbefore set forth.

It presents a case of novel impression in this State, and the motion made in behalf of the defendant is not without strong reasons for its support. In other States of the Union, where similar changes in the organic law as to the marital relations have long existed, there are not wanting judicial decisions that hold the doctrine contended for here. Nevertheless, to have granted the motion in this case would have had the effect of turning loose upon the community (without a precedent in this State to sustain it), upon a mere technicality, one convicted of a most daring and atrocious crime; and having instructed the jury to resolve all doubtful questions of fact in favor of the defendant, I determined to resolve a doubtful question of law in favor of the State, and refused the motion for a new trial , to which the defendant, by his counsel, duly excepted.

Mr. J. E. McDonald , for appellant.

Burglary, like arson, is an offence against the habitation , the residence , the domicile , and regards the possession rather than the property. 2 Bl. Com. 220, 223; 1 Bish. Crim. Law , §§ 104, 559; 1 Russ. Crimes , 797; 2 Whart. Crim. Law , § § 1555, 1566; 29 Conn. 342; 26 Mich. 106. Being such, it is an offence against the domiciliary proprietor, the head of the family, who is the husband. 1 Bouv. Inst. 62, 96, 98, 115, 116; 2 Wait Act. & Def. 635, 638; Tyler Inf. & Cov. 312; 2 Bish. Mar. Wom. § 157; 1 Russ. Cr. 807-9; 2 East P. C. 500-4; 2 Whart. Cr. Law , §§ 1577, 1582; 38 E. C. L. R. 175. The constitution and acts enlarging the rights of married women have not modified the common law rule in this respect. The husband still has a right to fix, determine and control the family domicile, and to be the legally recognized head of the family. Tyl. Inf. & Cov. 789; 12 Casey , 410; 2 Bish. Mar. Wom. § 24; 12 Md. 108; 124 Mass. 30; 26 Mich. 106.

Mr. Solicitor Gaston , contra.

OPINION

MR JUSTICE MCIVER.

The defendant having been convicted of burglary, moved the circuit judge for a new trial, upon the ground that the indictment alleged that the house which was broken into was " the dwelling house of Mrs. Mary Ladd," whereas it should have alleged the house to be that of her husband, A. W. Ladd. " The testimony of Mrs. Ladd and of her husband, which was not contradicted, showed that Mrs. Ladd had a separate estate; that she had leased the premises occupied by them; that the goods in the house belonged to her, and that her husband acted as her agent." The circuit judge refused the motion, whereupon this appeal was taken, which presents the single question, whether the allegation of ownership of the house was sufficient.

This question, as is said by the circuit judge, is one of novel impression in this State, and therefore we are not bound to follow the technical rules which formerly embarrassed the courts in determining questions of this character, under the principles of the common law. Indeed an examination of the various cases in which such questions have arisen would show that it would be quite difficult, if not impossible, to reconcile them, or to extract from them any well-defined rule. As is said in 2 Bish. Crim. Prac. § 109: " It is not easy to lay down, in a single sentence, a rule by which the ownership is, within the principles pertaining to this department of our law, to be determined. Probably in some cases the ownership may be laid in one person or another, at the election of the pleader. Thus where a gardener lived in a house of his master, quite separate from the dwelling house of the latter, and the gardener had the entire control of the house he lived in, and kept the key, it was held that on an indictment for burglary, the gardener's house might be laid either as his or his master's,'DDD' citing Rex v. Rees , 7 C. & P. 568.

So in 2 East P. C. 499, it is said: " It is necessary to ascertain to whom the mansion belongs, and to state that with accuracy in the indictment. And here it is to be lamented that the same rule does not prevail in this case as in arson, which is considered as an offence against the actual possessor, by whatever title he may hold possession. But in burglary the rule is much more complex, the ownership being neither referable altogether to the legal title nor to the possession, but partaking sometimes of one, sometimes of the other, as well as of both. If the rule by which to ascertain this ownership may be compressed, with sufficient discrimination, into a small...