Opinion
06-29-1852
HENDERSON v. THE COMMONWEALTH.
1. Though the mere breaking and entering the close of another, is not a misdemeanor, yet if that entry is attended by circumstances constituting a breach of the peace, it will become a misdemeanor for which an indictment will lie.
2. The going upon the porch of another man's house armed, and from thence shooting and killing a dog of the owner of the house, lying in the yard, in the absence of the male members of the family, and to the terror and alarm of females in the house, is a misdemeanor, for which an indictment will lie.
At the April term 1850 of the Circuit court of Wood county, the grand jury found an indictment against George W. Henderson, for that he did break and enter the close of one Enos Pugh, situate in the county aforesaid, and at the house of said Enos Pugh did then and there wickedly, mischievously and maliciously, and to the terror and dismay of one Nancy Pugh, wife of said Enos Pugh, fire a gun in the porch of said house, and then and there did shoot and kill a dog belonging to said house, without any legal authority, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the Commonwealth. On the trial the jury found the defendant guilty, and assessed his fine at one hundred dollars: whereupon he moved the Court for a new trial, which motion was overruled; and he excepted.
The facts proved upon the trial were as follows: That some time about the 1st of March 1850, in the county of Wood the defendant came to the house of Enos Pugh about eight or nine o'clock in the morning, and then and there went upon the porch of the dwelling house, having his gun on his shoulder and his shotpouch about his neck: A part of the family of Enos Pugh was then in the house. The defendant told Nancy Pugh wife of Enos, that he suspected her dogs for worrying and killing his sheep, and he had come to kill the said dogs. She told him that she did not believe the said dogs were guilty, and refused to have them killed, and forbade his doing so; but he disregarding what she said, took his gun from his shoulder, still standing on the porch, and shot and killed one of the dogs; and then and there loaded his gun and shot another of said dogs and wounded him; the said dogs then lying in the yard near the said porch: One of the dogs being a large one and the other a small one, the large one being killed. That the smoke of the gun when fired passed into the dwelling house by the door. Nancy Pugh was much alarmed by the firing of the gun in the manner in which it was done; and two of her daughters, members of the family, were also greatly alarmed, and one of them who was dyspeptic, so much so that she became sick in consequence of it, and had to call in medical assistance. At the time the above transaction took place there was none of the male portion of said Pugh's family at home; they being confined in the jail of Wood county, having been convicted upon accusations made against them by the defendant.
The other facts proved related to the question whether the dogs shot by the defendant were the same that had worried his sheep. They were not seen by any one to do it; or to be near the place where it was done; and the facts relied upon to shew their guilt were certainly not very conclusive against them; but it is not a question of much importance in this case.
After the Court had overruled the motion for a new trial the defendant filed errors in arrest of judgment.
1st. That the facts stated in the indictment did not constitute a penal offence under any statute in force at the time the act was done.
2d. That they did not constitute an offence at common law.
But the Court overruled the motion to arrest the judgment; and rendered a judgment upon the verdict for the Commonwealth. Whereupon the defendant applied to this Court for a writ of error, which was allowed.
OPINION
LOMAX, J.
It is abundantly clear that the mere breaking and entering the close of another, though in contemplation of law a trespass committed vi et armis, is only a civil injury to be redressed by action; and cannot be treated as a misdemeanor to be vindicated by indictment or public prosecution. But when it is attended by circumstances constituting a breach of the peace, such as entering the dwelling house with offensive weapons, in a manner to cause terror and alarm to the family and inmates of the house, the trespass is heightened into a public offence, and becomes the subject of a criminal prosecution. The case of Rex v. Storr, 3 Burr. R. 1698, and Rex v. Bathurst, which was cited in that case, establish and illustrate both of these principles. Three of the indictments in that case were quashed, because they amounted merely to trespass vi et armis. But as to the fourth indictment, which was for entering a dwelling house vi et armis, and with strong hand, the objection to that indictment was given up by the counsel for the defendant, and the prosecution for that offence was sustained, whilst the three first indictments were ordered by the Court to be quashed. From what was said in those cases, the circumstance that the place where the entry is made is a dwelling house, as reason would suggest, and the peace of those abiding under the sanctity of their home and the security of their castle, would strongly require, is a most important circumstance to be taken into consideration in the aggravation of trespass quare clausum fregit into a misdemeanor; as is also the circumstance that the entry was made with fire arms or other offensive or dangerous weapons. The facts, as disclosed in this record for the purpose of sustaining the motion for a new trial, shew a trespass most aggravated in both of these circumstances; as also in the destruction of animals within the personal and domestic protection of the owners of the dwelling house, and the alarm and dismay and other evils which the violence occasioned to the unprotected females of the family. No trespass could be aggravated beyond the wrongs of a private injury and swell into the magnitude of a crime against the public peace, if the facts stated in the record do not amount to a misdemeanor. Therefore the motion for a new trial was properly overruled. It is hardly less clear, that the frame of the indictment, in its charges of the circumstances accompanying the trespass, is sufficient to maintain the prosecution. Wherefore the errors in arrest of judgment were also properly overruled. The judgment of the Circuit court should be affirmed.