
    *Vaughan v. The Commonwealth.
    January Term, 1867,
    Richmond.
    i. Criminal Law — House=Breaking— Indictment. — An indictment -which charges a breaking into the house of L, with intentto steal, and stealing therefrom, is an indictment for house-breaking; and is good.
    
      12. Same — Indictment for House=Breaking — Conviction of Larceny. — In such indictment, if the actual larceny is properly stated, the prisoner may be found guilty of the larceny, though acquitted of the house-breaking.
    3. Same — Larceny—Indictment—Description of Goods. “On such an indictment, which charges that the prisoner a lot of queensware then and there feloniously did steal, take and carry away, is good áíter verdict as a charge ol larceny, though it does not specify the articles, or state that they were the property of L, or any other person.
    4. Same — Confessions—To One in Authority — Case at Bar.- A person committed on a charge of larceny by a justice, is sent in charge of a special constable and the prosecutor to jail, and on the way this constable says to him, “you had as well tell all about it ” After they had rode about a mile after this remark, without any other remark being addressed to the prisoner, he voluntarily says to the prosecutor, “I will tell you all about it;” and proceeds to tell how and by whom the breaking and larceny was committed. The constable was one in authority over him; and the statement is not admissible in evidence.
    This was an indictment in the Circuit court of the county of Rockbridge, against George Vaughan, a freedman. The indictment contained but one count, and charged that the prisoner did on, &c., feloniously, in the night time, break and enter the plough shop of Hugh R. Lyle, with intent, the goods and chattels of the said Lyle, then and there being found, felon-iously to steal, take and *carry away, and one lot of queensware of the value of sixt3T dollars, one drawing knife of the value of one dollar, one saw of the value of two dollars, and one hatchet of the value of one dollar, then and there being found, feloniously did steal, take and carry away, against the peace, &c.
    On the trial of the case, the only evidence against the prisoner was his admission. It appears that the prisoner, a freedman of about seventeen years of age, with one Tom Brown, also a freedman, was arrested on the affidavit of Hugh L. Lyle, on the charge of house-breaking and larceny, and without any warning by the magistrate that they were not bound to criminate themselves, upon the confession of Tom Brown, they were committed for trial by a magistrate of Rockbridge county, and the prisoner was sent to jail in charge of Humphreys, into whose custody ■ as special constable, he was delivered, and also in charge of Hugh E. Ryle, the prosecutor; and that on the way to the jail, Humphreys said do the prisoner, “you had as well tell all about it,” referring thereby to the house-breaking and larceny charged against him. After they had rode about a mile, after Humphreys had made the remark above stated, without any other remark being addressed to the prisoner by Humphreys or Ryle, he voluntarily said to Ryle, I will tell you all about it; and then proceeded to tell how the act had been done, and who were engaged in it. The prisoner, by his counsel, moved the court to exclude the evidence, on the ground that it was induced by what had occurred before the magistrate, and the remarks of Humphreys, a person in authority over the accused. But the court overruled the motion, and admitted the evidence and the
    The jury found the prisoner guilty, and the penitentiary at two years. *And the moved the court to arrest the judgment,’on the ground that the indictment set forth a substantive charge of grand larceny, in stealing a lot of queensware, which is so uncertain and defective, that he could not upon any subsequent trial for stealing, &c., the specific articles of queensware, plead or prove a former acquittal or conviction. But the court overruled the motion, and entered judgment upon the verdict. And the prisoner applied to this court for a writ of which was awarded.
    Dorman, for the prisoner.
    The Attorney General, for the commonwealth.
    
      
      CriminaI Law — House-Breaking — Indictment. —It seems well settled that an indictment which charges a breaking into a house with intent to steal, and stealing therefrom, is an indictment for housebreaking, and is good. Speers’ Case. 17 Gratt. 570; Wright's Case. 82 Va. 183; State v. McClung, 35 W. Va. 280, 13 S. E. Rep. 654.
    
    
      
      Same — Indictment for Burglary — Conviction of Larceny. — Where the indictment charges not only breaking and entering, but the stealing of a trunk and its contents, of a stated value, the prisoner, though acquitted of burglary may be found guilty of larceny. Clarke v. Com., 25 Gratt. 908. See also, Speers’ Case, 17 Gratt. 570.
      Same — Count Alleging Burglary and Larceny.— Under a count which properly alleges both burglary and larceny, there may be a conviction of either, but not of both. State v. McClung, 35 W. Va. 280, 13 S. E. Rep. 654.
      In State v. McClung, 35 W. Va. 280, 13 S. E. Rep. 654, it was said: “In Vaughan's Case, 17 Gratt. 576, where there was a count charging both burglary and larceny, Judge Joynes said: ‘The allegation of actual larceny is only in aid of the intent. If that allegation were struck out altogether, enough would remain to describe the offense of which the prisoner has been convicted. Such being the object for which the charge of an actual larceny is introduced, it need not be laid with the same formality as in an indictment for the larceny itself. Larned v. Com., 12 Metc. (Mass.) 240; Com. v. Doherty, 10 Cush. 52; and see Regina v. Clarke, 1 Car. & K. 421, (47 E. C. L.). It is always better, however, to lay the charge of larceny in proper form to avoid objection in case the prisoner, should, as he may, on such a count as this, be found not guilty of breaking and entering but guilty of larceny.’ ”
      See also, foot-note to Speers’ Case, 17 Gratt. 570.
    
    
      
      Same -Larceny — Indictment- Description of Goods. —See principal case cited and approved in Wright v. Com., 82 Va. 185.
    
    
      
       Same — Confessions.—In Bram v. United States, 168 U. S. 532, 18 Sup. Ct. Rep. 193, the court said it would not attempt to review in detail numerous decisions of the various courts of last resort in the several states treating of confessions in the divergent aspect in which that doctrine may have presented Itself, but that it would content itself with a brief reference to a few of the leading and well-considered cases treating of the subject of inducements, and which were opposite to the case at bar. Among many other cases, it cites the principal case as holding that the language, “You had as well tell all about it,” was sufficient inducement to exclude confession made in consequence thereof.
      See also, Thompson v. Com., 20 Gratt. 724, and footnote.
      
      See generally, monographic note on “Burglary and Housebreaking” appended to Clarke v. Com., 25 Gratt. 908; monographic note on “Larceny” appended to Johnson v. Com., 24 Gratt. 555; mono graphic note on “Indictments.”
    
   JOYNRS, J.,

delivered the opinion of the court:

indictment case a single count, in which the prisoner is charged with breaking and entering, in the night time, the shop of Hugh E. Eyle with intent to steal the goods of said Hugh E. Eyle “then and there being found,” and with stealing certain articles “then and there being found.” Among the articles alleged to have been stolen was “one lot of queensware. ’ ’

The prisoner having been found guilty by the jury, moved the court to arrest the judgment; and assigned as the ground of the motion that the charge of stealing “one lot of queensware,” without further description, is so uncertain that the prisoner could not, if subsequently indicted for stealing the specific articles comprised in the said ‘ ‘lot of queensware, ’ ’ avail himself of the plea of former conviction in this case. And the further ground is taken in the petition that the articles alleged to be stolen are not described as the property of any person. The grounds thus alleged for arresting the judgment both rest upon the assumption that, by the verdict in this case, the petitioner has been found guilty of the crime of larceny, and not merely . of the crime of breaking and entering *the shop with intent to commit lar-The Speers v. Commonwealth, that the effect of á general verdict of guilty upon such a count as the one in this case, is to convict the prisoner of the crime of breaking and entering with intent to commit larcen3’’, and not of the crime of larceny also. The ground upon which the motion in arrest was placed in the court below cannot, therefore, be sustained. And the further ground taken in the petition is equally untenable. As we have held in Speers v. Commonwealth, the allegation of an actual larceny is onlj- in aid of the allegation of intent. If that allegation were struck out altogether, enough would remain to describe the offence of which the prisoner has been convicted.

Such being the object for which the charge of an actual larceny is introduced in cases of this character, it need not be laid with the same formality as in an' indictment for the larceny itself. Larned v. Commonwealth, 12 Metc. R. 240; Commonwealth v. Doherty, 10 Cush. R. 52. And see Regina v. Clarke, 1 C. & K. 421 (47 Eng. C. L. R.). It is always better, however, to lay the charge of larceny in proper form, to avoid objection in case the prisoner should, as he may, on such a count as this, be found not guilty of the breaking and entering, but guilty of the larceny. I do not mean to intimate, however, that the objections taken in this case would have been sufficient to arrest the judgment, if the prisoner had been found guilty of larceny. The description of the goods stolen as “a lot of queensware,” is sufficient, after verdict. And upon a subsequent indictment of stealing the specific articles embraced in the lot of queensware,” the prisoner would not lose the benefit of a plea of former conviction, because he would have a right to establish the of the articles proof. 3 Greenleaf Evid. g 36; 2 Eeading Crim. Cases *500-561. And so the allegation that the prisoner broke and entered the shop with intent to steal the goods of Eyle “then and there found,” and that he “then and there stole the goods described,” is a sufficient averment, after verdict, that the goods stolen were the of

But I am of opinion that the court erred in overruling the objection of the prisoner to the admission of the confession offered in evidence against him. The confession was made while the prisoner was in custody of Humphreys, a special constable, who, together with Eyle the prosecutor and owner of the shop and goods, was taking him to jail after he had been committed by the magistrate. While on the road Humphreys said to the prisoner, ‘ ‘you had better tell all about it.” After the parties had gone about a mile further, and without, as far as. appears, any other remark having been made by any one of them, the prisoner said to Eyle, “I will tell all about it,” and proceeded to make the confession which was given in evidence. The confession, though not made immediately after the remark of Humphreys to the prisoner, seems evidently to have been induced by it. The form of the prisoner’s first remark to Lyle indicates that it was made with reference to what Humphreys had said to him, and as the result of reflection in the interval. His reflection upon the remark of Humphreys seems to have led him to the conclusion that it would be better for him to “tell all about it;” and he therefore proceeded to do so.

Humphreys was a 1! person in authority, ’ ’ within the doctrine established by this court in Smith’s Case, 10 Gratt. 734; and Shifflet’s Case, 14 Gratt. 652. That such a remark as that made by Humphreys, proceeding- from a person in authority, will render a confession induced by it inadmissible is well established by the English *cases, and was recognized in the opinion of Judge Moncure in Shifflet’s Case, in which all the other judges concurred. 1 Greenleaf Evid. § 219; Rex v. Kingston, 4 C. & P. 387 (19 Eng. C. L. R. 434) ; cases cited, 2 Leading Cr. Cases 164-232.

In another part of the bill of exceptions, the remark of Humphreys is stated to have been, “you had as well tell all about it.” But we must take it to have been in the other form, in which it is given in that part of the bill which states the evidence which was admitted by the court. The difference between the two forms of expression is unimportant. One form of expression was calculated to produce as much effect, and the very same effect, upon the mind of the prisoner as the other.

I am of opinion to reverse the judgment, set aside the verdict, and remand the case for a new trial.

Judgment reversed.  