Opinion
11-23-1863
SAMANNI v. THE COMMONWEALTH.
Crane and Ratcliffe, for the prisoner. The Attorney General for the commonwealth.
1. S occupies a house, the front room on the first floor as a store, the back room as a dining room, the upper rooms as sleeping apartments for her family; but the only mode of ascent to the upper rooms is outside the house. A riotous destruction of the front door and window of the store room, is an offence under the act Code, ch. 194; § 6.
2. A partial pulling down or destruction of a dwelling house is an offence under the act Code, ch. 194, § 6: In this differing from the English statute.
This was an indictment against Thomas Samanni in the Hustings court of the city of Richmond, held by the judge thereof, for that he did with other white persons, to the number of three or more, unlawfully and riotously assemble themselves together to disturb the peace of the commonwealth. And being so unlawfully and riotously assembled together, the dwelling house of one Mina Schweitzer, situate in the city, did then and there feloniously destroy in part, to the great terror, & c.
On the trial it was proved that there was a riot in Richmond at the time stated in the indictment, and that the prisoner and a number of others, mostly women, made an attack upon the store of Mrs. Schweitzer who had shut the door. That there were several blows upon the door with a hatchet, some of them by Samanni and others by a woman, by which a panel of the door was broken, and then the bar which fastened the door was removed by some person who put his or her hand through the broken panel; and the door was thus opened, and the crowd entered and took away a large amount of goods. A window near the door was also broken.
It also appeared that Mrs. Schweitzer occupied the whole house, using the upper part for sleeping rooms for herself and her children, and the front part of the lower floor as a store for the sale of goods, and the rear part of the same floor as a dining room. The dining room and store are separated by a partition with a door in it. There is no internal communication between the store and the lodging rooms above; but to get from the store to these rooms it is necessary to go out of doors into an alley, and then ascend a pair of steps.
After the evidence had been introduced the Attorney for the Commonwealth moved the court to instruct the jury as follows:
" If the jury believe from the evidence, that the upper part of the house of Mina Schweitzer was used by her as a sleeping apartment for herself and family, and the lower part thereof was used by her as a store and a dining room for herself and family, then the said house is a dwelling house within the meaning of the 6th section of the 195th chapter of the Code of Virginia."
The prisoner moved the court to give the following instruction:
" If the jury shall believe from the testimony, that Mrs. Schweitzer occupied the lower part of the said house as a store for the purchase and sale of goods, and the upper part thereof as a dwelling house wherein she slept; but there was no internal communication between the upper and lower part of said house, except by going out of the house into and through an alley, then the store house is not a part of the dwelling house."
The court gave the first instruction, and refused to give the second; and the prisoner excepted.
The jury found the prisoner guilty, and ascertained the term of his imprisonment in the penitentiary at two years. And he then moved for a new trial, on the ground that the verdict was contrary to the law and the evidence. But the court overruled the motion; and the prisoner again excepted; and applied to a judge of this court for a writ of error, which was awarded.
Crane and Ratcliffe, for the prisoner.
The Attorney General for the commonwealth.
OPINION
ROBERTSON, J.
We are of opinion that the house alleged in this case, to have been partially destroyed, is a dwelling house within the meaning of the statute under which the prosecution was had: and that the court committed no error in giving the instruction asked for by the Attorney for the Commonwealth, and in refusing that asked for by the prisoner.
But it is insisted that a new trial ought to have been granted because the destruction was not such as is contemplated by the statute; and numerous English decisions have been referred to for the purpose of showing that where the destruction is partial only, it must, to bring the case within the statute, be made to appear that there was an intention to destroy totally. The language of the English statute is as follows, viz: " If any persons riotously and tumultuously assembled together to the disturbance of the public peace, shall unlawfully and with force demolish, pull down, or destroy, or begin to demolish, pull down or destroy, " & c. And it has been held, under it, that to convict of beginning to destroy a house, an intention to destroy the house, and not a portion of it merely, must be shown: in other words that a destruction of the whole house must have been begun.
It is obvious that these decisions rest upon the peculiar wording of the English statute. If the same language were used in ours, it might well be said that, having been adopted subsequently to these decisions, it ought to be construed in conformity with them: that in copying the English statute our legislature intended to take it with the meaning affixed to it by the English courts.
But the language of our statute is very different. It is, " If any rioter, being free, pull down, or destroy, in whole, or in part, any dwelling house, or assist therein, he shall be confined in the penitentiary not less than one, nor more than five years; and, though no such house be so injured, every rioter," & c.
It seems to have been intended by this statute to put the partial destruction of a dwelling house on the same footing with its total destruction, as to the guilt and punishment of the rioters engaged in it; and the terms used appear to have been adopted with the express view of excluding the possibility of any such construction as that placed upon the English statute.
The only question remaining is, whether, in this case, any part of the house was pulled down or destroyed? A window was broken into; and the front door was broken open, by splitting a panel and removing the bar with which it was fastened. The door was thus rendered useless, and destroyed as a door. This was a destruction of a part of the house, sufficient to bring the perpetrators within the purview of the statute passed to prevent rioters from injuring dwellings.
It can make no difference that the purpose of the rioters may have been to rob, rather than to destroy. If in the accomplishment of that purpose they destroyed any part of the house, their offence, under this statute, was as complete as if their original design had been to pull down or destroy the house.
The motion for a new trial was properly overruled; and the judgment must be affirmed.
JUDGMENT AFFIRMED.