
    William Bethune, plaintiff in error, vs. The State of Georgia, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Indictment — Sufficiency of. — An indictment for burglary, charging the offense to have been committed in the night of a certain day, is sufficient, and it is not necessary to allege the hour when the burglary was committed.
    2. Burglary — What Constitutes. — Burglary may be committed in a house which is “the place of business of another, where valuable goods, wares or produce, or other articles of value are contained or stored.” If it be not the “mansion or dwelling or store-house,” it is sufficient if it be proven to be "the place of business of another, where valuable goods, etc., are contained or stored,” although that “business” may not be of the kind which is carried on in conducting a “store-house.”
    3. Same — Same.—It is not necessary, in order to sustain the charge of burglary, to prove the house broken into and entered was the “place of business,” etc., used for the purpose of containing of 'storing the goods alleged to have been stolen. If the goods were, in fact, contained or stored in such a *house at the time, it is sufficient to support the indictment, and this is also sufficient, although the business done in the house be not carried on with or in the articles or goods stolen.
    4. New Trial — Evidence—Sufficiency of to Sustain Verdict. — The jury having, by their verdict, found that the defendant did commit the offense charged against him, and there being strong evidence to support the verdict, a new trial cannot be granted on the ground that the verdict is contrary to the evidence or the law.
    Criminal law. Burglary. Indictment. New trial. Before Judge Buchanan. Coweta Superior Court. September Term, 1872.
    William Bethune was placed on trial for the offense of burglary, under the following indictment:
    “STATE OF GEORGIA — Coweta County:
    “The grand jurors selected, chosen and sworn for the county aforesaid, to-wit: * * * In the name and behalf of the citizens of Georgia, charge and accuse William Bethune, of the county aforesaid, with the offense of burglary: for that, on the 11th day of July, in the year of our Lord, 1872, in the night of the same day, in said State and county, the said William Bethune, with force and arms, the wood-shop, á house of business of one certain Cash Stevenson, where valuable goods, wares, produce, and other articles of value were contained and stored, then and there situate, feloniously and burglariously, did break and enter, with intent, the goods and chattels in said wood-shop so as above described, then and there contained and stored, then and there feloniously and burglariously.to steal, take and carry away, contrary to tíre laws of said State, the good order, peace and dignity thereof.”
    The defendant pleaded not guilty.
    The evidence made the following case: Cash Stevenson did business in a wood-shop in the city of Newnan, in Coweta county. He kept his tools and lumber in this house. ’The shop was broken open and entered on the evening of the 11th of July, 1872. The shop was closed and the door locked on the evening before the burglary was committed. The house *was entered through the window, between sundown at night and seven o’clock the next morning. The window was closed on the evening before the offense was perpetrated. There were three sacks of wheat in the shop on the evening before, and on the next morning one was missing — a two bushel sack belonged to Mr. Dunbar. The defendant was lying about the shop on the evening before until four or five o’clock, when he left. The sack of wheat taken was worth fully two dollars. Mr. Dunbar’s wheat, buggies and lumber were stored in the shop. At about eight o’clock on the evening of July 11th, 1872, J. A. Allen, one of the witnesses for the State, on his way from supper, discovered a sack of wheat lying on the sidewalk. There was no one about the wheat when he first saw it. Saw a man in his shirt-sleeves walking from the direction of it. It was too dark to tell who he was. When he returned home the sack of wheat was still there, .and defendant was trying to get it on his shoulders. Allen assisted him in getting it up. Asked him what he was going to do with it ? Replied, he was going to sell it! Saw that the sack was wet and muddy, and not knowing how much wheat there was, offered one dollar for it. Defendant accepted the bid, carried the wheat to Allen’s store, received his money and went off. On the next day, the sack of wheat was identified as one of those that were in the shop on the evening before.
    The evidence for the defense merely consisted of the statements of several witnesses as to defendant’s being insane from the use of liquor, some swearing that he had oinomania and delirium tremens, others that he had been drunk for some time before the offense was committed.
    The jury found the defendant guilty. Whereupon, a motion was made for a new trial upon the. following grounds :
    1st. Because the jury found contrary to the law and the evidence.
    2d. Because the jury found against the weight of evidence.
    . 3d. Because the Court erred in refusing to charge as requested by defendant’s counsel, “that if they should believe from the evidence that defendant broke and entered in the *night time with intent to commit a felony or larceny the house alleged in the indictment and proven on the trial, yet they could not find the prisoner guilty of burglary, unless they should believe it was a place of business of another of a similar nature and character to that of a mansion, or dwelling,, or storehouse.”
    4th. Because the Court charged, “That they should convict the prisoner of burglary, if they should believe from the evidence that he broke and entered with an intent to commit a felony or larceny in any place of business of another, where valuable goods, wares, produce or other articles of value were contained or stored, and that it did not matter whether it was a storehouse, blacksmith shop or a wood shop.”
    5th. Because the Court charged the jury, “That it made ne difference. whether the place of business of another was used for the purpose of- containing or storing valuable goods, wares, produce or other articles of value or not, if such articles were therein at the time of the breaking and entering.”
    6th. Because the Court erred in charging, “That it did not matter whether that place of business of another was a place in which a business was done in such valuable goods, wares, produce or other articles of value or not, if such articles were contained or stored there at the time of the breaking and elitering.”'
    7th. Because the Court erred in ruling, on motion of defendant’s counsel to quash, that it was unnecessary to allege in an indictment for burglary in the night, the hour when the burglary was committed.
    8th. Because the Court erred in overruling the motion of counsel in arrest of judgment, on the ground that the jury trying said case returned a verdict of guilty, the bill of indictment charging burglary, without specifying whether it was burglary in the day time or burglary in the night time.
    The motion was overruled,- and the' defendant excepted upon each of the aforesaid grounds.
    Smith & Brewster; W. F. Wright, for plaintiff in error.
    *A. H. Cox, Solicitor General, for the State.
    
      
      Burglary. — See generally, title Burglary. Ency. Dig. Ga. Rep., vol. 2, pp. 646, 651.
      Same — Where the testimony shows that between seven and nine o’clock (the date being the 11th of April), that the witnesses’ business in the room at the former hour was to get a lamp and all was then right, it would thus seem that there was no burglary until it was late enough for lamps to be needed, and such- evidence is sufficient to warrant the jury that the burglary was committed in the nighttime as charged. Williams v. State, 60 Ga. 445, citing principal case with approval.
      Same. — When the facts that the goods were in the house on Friday evening, that it was broken into that night and defendant was found in possession Sunday morning — scarcely two days after — and he gave no explanation of the possession, are sufficiently established, we think that the evidence that he committed the crime which got the goods out of the house is satisfactory. Brown v. State, 59 Ga. 458, principal case cited with approval.
      Same. — “An incomplete building, which carpenters are engaged in finishing, and where they have deposited their tools, protecting the building by closing the outer doors and fastening the windows with a canvas frame, is such a place of business as-may be the subject of burglary under Code, § 4386; and if such canvas frame be broken and the house be entered and tools stolen thereform, the crime is burglary.” ' Grimes v. State, 77 Ga. 763, principal case cited with approval.
      Same. — In the case of Simmons v. State, 73 Ga. 616, where a person having money in a satchel went into a banking house, and temporarily deposited it upon the counter, and while standing within about two feet of it, one or two persons called his .attention and the other abstracted money from the satchel, the offense was larceny from the house although the satchel was neither the property of the owners or occupiers of the building, nor was under their custody. The principal case cited with approval.
      Same. — In the case of Brown v. State, 59 Ga. 459, where the facts were that the store was left unbroken with the goods in it, at sundown, and the next morning at sunrise was found broken and entered, and the goods gone — such store being on a street in a city — ■ is - sufficient proof that the burglary was committed at night. The principal case was cited with approval.
      Same. — Principal case cited with approval in foot-note in Holland v. State, 34 Ga. 455.
    
   McCay, Judge.

The offense was charged to have been committed in the night of a certain day; and the objection is that the indictment does not specify the hour. The last, clause of section 4320 of the Code, in defining burglary, says: “Burglary may be committed in the day or night;” and the next two sections prescibe the punishment for “burglary in the day time” and “burglary in the night.” It may be remarked, that by the Act of October 5th, 1868, the penalty for burglary in the night has been changed to imprisonment in the penitentiary, in all cases. We cannot see any reason why the hour of the night in which the offense is charged to have been committed should be specified, which would not apply to setting out the hour of the day. The evidence must show in each case whether it was day or night,'and when that was shown the hour would be immaterial. By the common law burglary could only be committed in the night, and “the common law now is, and for a long period has been, that those portions of the morning and evening in which, while the sun is below the horizon, sufficient of his light is above for the features of a man to be reasonably discerned, belong to the day. Tight reflected from the moon is not to be taken into the account: 1 Bishop on Criminal Taw, section 163. In England and in some of the United States, an hour has been fixed by statute for night, in law, to begin and close. But we have no such provision.

Burglary, by the Code, section 4320, is defined to be “the breaking and entering into the dwelling, mansion or store house or other place of business of another where valuable goods, wares, produce or any other articles of value ar<p contained or stored, with intent to commit a felony or larceny.” It is contended that if the house be not a dwelling, mansion or storehouse, it must be a place of business of another, where the business carried on is similar to that which appertains to *a store house, or in the language of the objection, the other place of business must be “of the nature of a store house.” This objection is founded on the rule that where particular words in a statute are followed by general words, the latter are restricted to like objects as those specified. In the definition given in the Code, of burglary, the words, “or other place of business of another,” are further defined by the qualification “where valuable goods, wares, produce or any other article of value are contained or stored,” and when the two terms of the sentence are put together just as they occur in the Code, the places where burglary may be committed, beside dwellings, mansions and store houses, are as distinctly specified as if they were expressly limited to those three. Indeed, those other places are more accurately described and have a more express definition by the terms of the law itself, than the word store house. The Code enlarges the number of places wherein the offense of burglary may be committed beyond that of the common law; and obviously intended the use of words, .the ordinary signification of which was clear and commonly, understood, to throw a strong protection around the place of business of the citizen where any article of value was contained or stored, by making any one who breaks and enters into them with intent to commit a felony or larceny, a burglar, and punishing him as such. In Holland vs. The State, 39 Georgia, 455, where the question was on the construction of an Act which said, it shall not be lawful for any person in this State to make any spirituous liquors “out of an)r corn, wheat, rye or other grain, except for medical purposes,” etc., it was held that the seed of millet or sugar-cane was included in the words ‘.‘other grain.” In 40 Georgia, 689, the words of a penal statute were any E O, or A B C table, or Roulette table, or other table of like character,” and were construed to embrace a table at .which the game called “Keno” was played, and it was held that “the plain intent of the statute” required such a construction. Also in 3 Georgia Reports, 18, that a person who kept open a tippling house on the Sabbath, was guilty of a violation of the statute *which prohibited the keeping open tippling houses on that day. In 5 Wheaton Reports, 76, Marshall, Chief Justice, says: “That although penal laws are to be strictly construed, they are not to be construed so strictly as to defeat the obvious intention of the Legislature. The maxim is not to be applied so as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the Legislature has obviously used them, would comprehend. The intention of the Legislature is to be collected from the words they employ.” We think the intention of the Legislature in this section of the,Revised Code, which was taken from the Acts of 1866, is clear, that the words, “other place of business of another where valuable goods, wares, produce or any other article of value are contained or stored,” are not restricted to mean simply a place of the nature of a storehouse.

The same rule of construction applies to the words “goods, wares, produce, etc.” It does not matter what felony is intended, or of what the larceny is intended, if the breaking and entering be into a place wherein burglary may be committed. A person may break and enter into a storehouse or other place, etc., where wheat is contained or stored, with intent to commit rape or murder, or to steal money or whatever of value may be therein and be guilty of burglary. If “the place” answer the description of the law, the felony or larceny intended may be as various as the statutes defining acts of felony or larceny. It is the intent to steal, so far as the larceny is concerned, and not the kind, of “article of value” which is stolen or intended to be stolen that makes the offense complete.

There was strong evidence to support the verdict, and we do not feel authorized to grant a new trial on the ground that the verdict was contrary to law or the evidence.

Judgment affirmed.  