
    JONES v. THE STATE.
    1. A motion in arrest of judgment on a conviction of larceny from the house, upon an indictment drawn under the Penal Code (1910), § 175, is not sustainable on the ground that this code section fails to prescribe a penalty.
    2. Larceny from the house, as defined in the Penal Code (1910), § 175, is punishable as prescribed in the Penal Code, §§ 177, 178, and 179.
    3. An indictment for larceny from the house as defined in the Penal Code (1910), § 176, must allege that it was privately committed, and the punishment for the offense denounced in that section is as is therein prescribed.
    November 17, 1916.
    Questions certified by Court of Appeals (Case No. 6925).
    
      L. H. Covington, for plaintiff in error.
    
      C. H. Porter, solicitor, contra.
   Evans, P. J.

We have examined info the history and origin of the code sections involved in the questions propounded by the Court of Appeals. We find that §§ 175, 176, 177, and 179 of the Penal Code of 1910 are virtual reproductions of the Penal Code of 1833 (Acts of 1833, p. 161). In the Penal Code of 1833 larceny from the house is contained in a division confined to that subject. There is a substantial concordance of § 26 of the Penal Code of 1833 with § 175 of the Penal Code of 1910; of § 27 with § 176; of § 28 with § 177; of § 29 with § 178; and of § 30 with § 179. The punishment of larceny from the house was that of a felony under the Penal Code of 1833, but was reduced to that of a misdemeanor by the act of 1866. Section 175 of the Penal Code of 1910 defines in general terms four classifications of the offense of larceny from the house: (1) breaking into any house with intent to steal; (2) entering any house with intent to steal; (3) stealing from any house after having broken into the same; and (4) stealing from any house after haying entered it. The punishment is provided in the following sections: 177 and 178 for the first and second classifications; and 179 for the last two classifications, where the house is one other than a dwelling-house or its appurtenances. Heard v. State, 120 Ga. 848 (48 S. E. 311). Section 176 covers an offense where the entering was without intent to steal, but where, being in the house, a person did privately steal money, etc., and provides a punishment according to the value of the article stolen. Inasmuch as all thefts are usually committed in private, it would seem that the distinction was really one of small difference. Perhaps this conception influenced the General Assembly in 1872 (Acts of 1872, p. 10) to modify that section by confining the houses in which larceny is committed to houses “within the curtilage,” so as to make the punishment apply to the case of a person who privately stole from a dwelling-house, shop, warehouse, or any other building within the curtilage. This amendment limited the application of § 176 to a house which was the subject-matter of burglary. See Code of 1873, § 4414. But however this may be, the General Assembly in 1877 (Acts of 1877, p. 22) struck the words, “within the curtilage,” and restored the section as it was in the Penal Code of 1833, § 27. It would thus seem that .in addition to the forms of larceny from the house, as defined in the Penal Code (1910), § 175, which are punishable under the Penal Code (1910), §§ 177, 178, and 179, tbe legislature intended to define a separate and distinct form of larceny from the house as defined in § 176, and an indictment drawn under that section must describe the larceny as having been privately done. Kimbrough v. State, 101 Ga. 583 (29 S. E. 39). Accordingly, we answer the questions propounded by the Court of Appeals as stated in the headnotes to this opinion.

All the Justices concur.  