
    Commonwealth versus Henrietta Curtis.
    Indictment charging larceny in a dwellinghouse. Plea, a former conviction of pilfering, on a complaint before the Police Court, with averments that the articles and the stealing mentioned in the indictment are the same articles and the same stealing mentioned in the complaint, and that the Police Court had jurisdiction of the offence. Replication, that the stealing charged in the complaint was a larceny in the dwellinghouse, which is a high and aggravated crime, and that the Police Court had no jurisdiction of the same. Rejoinder, that the stealing charged in the complaint was not a stealing in the dwellinghouse, and was not a high and aggravated crime of which the Police Court had no jurisdiction. Special demurrer alleging, 1. a departure, in this, that the plea avers the goods mentioned in the indictment and in the complaint, to be the same, and the rejoinder denies that they are the same: and 2. that the rejoinder is double. Held, that there was no departure and that the rejoinder was not double.
    
      Held also, that the plea was bad in form, because it did not directly traverse the charge of larceny in a dwellinghouse, but only impliedly denied it by the averment that the offence was within the jurisdiction of the Police Court} but that the defect was cured by the pleading over.
    The proper plea would have been, auterfois convict of the larceny, and not guilty of the residue of the charge.
    This was an indictment charging that the defendant, at Boston, on the 3d of October 1829, with force and arms, two large silver spoons of the value of six dollars, and twd silver tea spoons of the value of three dollars, of the goods and chattels of one William Fenno, in thé dwellinghouse of Fenno in his possession then and there being, did then and there in the dwellinghouse feloniously steal, take and carry away, against the peace iác. and the form of the statute, Sic.
    The defendant pleads in bar, that in the Police Court of the city of Boston, on the 5th of October 1829, the same Fenno, in behalf of the Commonwealth,• complained against this same defendant, that she was and is a pilferer, and on divers days and times at Boston, within six months last past, did pilfer, steal and carry away divers articles, the property of Fenno, in evil example, Sic. and against the form of the several statutes, Sic. ; that legal process issued from the Police Court against her, that she was arrested and arraigned, that she pleaded not guilty and was tried, adjudged guilty, and sentenced to pay a fine of $20, Sic. with which sentence she complied and was thereupon discharged, Sic. as appears by the record of said court, Sic. ; and she avers, that she is the same Henrietta Curtis tried, Sic. and that the goods and chattels in the indictment specified to have been stolen from Fenno on the day and time therein mentioned, are the same articles, goods and chattels specified and alleged in the complaint of Fenno to have been pilfered, stolen and carried away, the property of Fenno, and that the stealing, taking and carrying away mentioned in the indictment is the same stealing, taking and carrying away mentioned in the complaint, and that the Police Court had jurisdiction to receive and act on the complaint and .pass the judgment and sentence, and that such judgment and sentence were final, lawful, conclusive and binding as well on the Commonwealth as on the defendant; which she is ready to verify, Sic.
    The Commonwealth’s attorney prays oyer of the record ; by which it appears, that at a Police Court held on the 5th of October 1829, the defendant was brought before that court to answer to the Commonwealth on the complaint of Fenno, that she on that day was and is a wanton and lascivious person Sic.; and that Fenno, in behalf of the Commonwealth, further complained, that the defendant “ on the 5th of October 1829, at Boston, was and is a pilferer, and on divers days and times at Boston, within six months last past, did pilfer, steal and carry away divers articles, the property of said Fenno,” in evil example, &c. against the peace, &c. and the form of the several statutes, &c. The record further states, that the defendant pleaded not guilty, that she was tried and adjudged guilty “ of the offences aforesaid,” that she was sentenced to pay $ 20 and costs, and that she complied with the sentence. Whereupon the Commonwealth’s attorney replies, precludi non, &c. because he says that the property, goods and chattels described and referred to in the record as the property of Fenno, and .which property, goods and chattels in and by the record the defendant is charged by Fenno with having pilfered, stolen and carried away, were four silver salt spoons of the value, &c. five silver tea spoons &c. two large silver spoons of the value of six dollars, and two other silver spoons of the value of three dollars ; and that the pilfering, stealing and taking away the property in the record mentioned, was a felonious stealing, taking and carrying away in the dwellinghouse of Fenno, by the defendant, on the 26th of September last past, of said articles, to wit, the four silver salt spoons, &c. and the five silver tea spoons, &c. of the goods and chattels of Fenno, and another felonious stealing, taking and carrying away by the defendant on the 3d of October now current, of the two large silver spoons of the value of six dollars, and of the two silver tea spoons of the value of three dollars aforesaid, of the goods and chattels of Fenno, in his dwellinghouse there being ; which felonies and larcenies are high and aggravated crimes and the Police Court had no jurisdiction of the same and had no legal power or authority to proceed in the premises, except only to receive the complaint of Fenno and issue a warrant to arrest the defendant, and put her on examination and hold her to bail; all which the attorney is ready to verify, &c.
    The defendant rejoins, that the pilfering, stealing, and taking away the property in the record mentioned, was not a felonious stealing, taking and carrying away in the dwellinghouse of Fenno, by the defendant, on the 26th of September last of the four silver spoons, &c. and of the five silver tea spoons, &c. and was not another felonious stealing, taking and carrying away by the defendant on the 3d of October current, of the two large silver spoons, &c. and of the two silver tea spoons, &c. of the goods and chattels of Fenno in his dwellinghouse also then being ; and were not high and aggravated crimes of which the Police Court had no jurisdiction, in manner, &c. as the attorney of the commonwealth has alleged, and of this she puts herself on the country.
    To this rejoinder the commonwealth’s attorney demurs specially, and assigns for causes of demurrer ; —
    1. That the rejoinder is a departure from tire plea, in this, that the plea avers the goods and chattels mentioned in the indictment and in the record, to be the same goods and chattels, and the rejoinder denies that they are the same : —
    
      2. That the rejoinder is double, in this, that it avers that the pilfering, stealing and carrying away the property in the record mentioned, was not a felonious stealing, taking and carrying away in the dwellinghouse of Fenno, by the defendant, &c. and was not a high and aggravated crime of which the Police Court had not jurisdiction : —
    3. That the rejoinder traverses two facts in the replication, and tenders an issue on both facts : —
    4. That the rejjinder is in other respects double, argumentative, &c.
    The case was argued in writing.
    
      Davis, Solicitor-General, for the commonwealth.
    Larceny in a dwellinghouse is an offence exclusively cognisable in the Supreme Judicial Court and, in the county of Suffolk, the Municipal Court. The plea presents the question, whether a conviction in the Police Court, of the crime of being a common pilferer, is a bar to an indictment for an aggravated or compound larceny. In order to sustain the plea of auterfois convict, the crime must be the same for which the defendant was before convicted, and the conviction must have been lawful, and on a sufficient indictment. 1 Chit. Crim. Law, 462 ; 2 Hale’s P. C. 253; 2 Hawk. c. 36, § 10. It is manifest that the defendant has never been charged or convicted of the felony set forth in this indictment. The whole proceeding before the Police Court was coram non judice, and void, so far as if respects this charge. Butler v. Potter, 17 Johns. R. 145. The former conviction is void, upon tl.e ground that the complaint is radically defective, inasmuch as it alleges the pilfering of “ divers articles of property,” without naming them.
    The plea is bad, because the offences therein set forth as the ground of the conviction, are not the same as the offence charged in the indictment; nor does the averment in the plea cure the defect. The averment is, that tire goods mentioned in the former conviction and those mentioned in the indictment, are the same, and that the stealing is the same ; but there is no averment that the goods mentioned in the former conviction were stolen in the dwellinghouse of Fenno. The averment that the Police Court had jurisdiction, is unavailing ; the Court perceive from the record that that court had no jurisdiction of the crime alleged in the indictment.
    The rejoinder is had, for the causes assigned in the demur rer. But whether it is good or bad, is immaterial, if the plea is not good. The most correct course would have been, to demur to the plea ; but its insufficiency is not cured by the subsequent pleadings.
    A position taken by the defendant’s counsel is, that if the evidence upon a second indictment would have supported the former one, the conviction is a bar. But this general princi pie is not applicable to the present case. Evidence of a larceny in the dwellinghouse of Fenno, so far from supporting the complaint for pilfering, would have been fatal to it, as it would have shown that the Police Court had no jurisdiction.
    1 Stark. Crim. Pl. (2d edit.) 324. It is believed, that in every case in the books, where a former conviction has been allowed to be a bar to a second indictment, the court in which the former conviction was obtained, had competent jurisdiction of the crime alleged in the second indictment, as well as of the one alleged in the former conviction.
    S. I). Parker, for the defendant,
    cited Commonwealth v. Cunningham, 13 Mass. R. 247 ; Commonwealth v. Goddard, ibid. 457; Butler v. Potter, 17 Johns. R. 146 ; 2 Hale’s P. C. 246 ; Foster, 329 ; Archb. Crim. Pl. 51 ; Rex v. Emden, 9 East, 437 ; Rex v. Clark, 1 Brod. & Bingh. 476; 2 East’s P. C. 519, marg. note ; Rex v. Vandercomb, 2 Leach, 816.
    
      
      March 31st
    
   Wilde J.

delivered the opinion of the Court. The indictment charges the defendant with larceny in the dwellinghouse of one William Fenno. To this charge the defendant pleads a conviction of the larceny in the Police Court on the complaint of Fenno, and avers that the stealing, taking and carrying away mentioned in the indictment, is the same stealing, taking and carrying away mentioned in the complaint, and no other or different; and that the Police Court had jurisdiction of the offence. The attorney for the commonwealth replies, that the offence charged was a larceny in Fenno’s dwelling-house, which was a high and aggravated crime, and that the Police Court had no jurisdiction of the same. These averments in the replication are traversed in the rejoinder, and to this rejoinder the attorney for the commonwealth demurs specially, assigning several causes, none of which appears to us to be well assigned.

In the first place, it is alleged that the rejoinder is a departure from the plea, because the plea avers that the goods and chattels mentioned in the indictment, and in the record set forth in the plea, are the same ; which is denied in the rejoinder. But on looking into the rejoinder we find no such denial ; it denies that the larceny was committed in the dwelling-house ; and this is not inconsistent with any averment in the plea. On the contrary, we think the plea does virtually, though not expressly, deny that the larceny was committed in the dwellinghouse ; for it avers that the offence was within the jurisdiction of the Police Court; which could not be true if it was attended by the aggravating circumstance charged in the indictment.

Nor is the rejoinder double. It traverses the averments in the replication which go to show that the offence was not within the jurisdiction of the Police Court. These are connected averments asserting a single proposition, namely, that the offence was not within the jurisdiction of the Police Court, because it was an aggravated larceny, being committed in a dwellinghouse. This is traversed' in the rejoinder, and the only fact put in issue was the stealing in the dwelling-house. So that neither the replication nor the rejoinder can be charged with the fault of duplicity. We think, therefore, that the rejoinder is very clearly a sufficient answer to the replication.

The objection to the plea is apparently more weighty. In point of form the plea is certainly defective. It does not directly traverse the charge of larceny in the dwellinghouse. The defendant should have pleaded auterfois convict as to the larceny, and not guilty as to the residue of the charge ; and if the attorney for the Commonwealth had demurred to the plea, assigning the formal defect as a cause for demurrer, the plea must have been adjudged bad. But though the aggravating part of the charge is not expressly traversed, it is impliedly denied by the averment that the offence was within the jurisdiction of the Police Court. The plea, therefore, is not bad in substance, and the formal defect is cured by the subsequent pleadings. If the issue tendered by the rejoinder had been joined by the attorney for the Commonwealth and had been found for the defendant, there could have been no question but that she would have been entitled to a discharge ; and by the demurrer she is put on the same footing. By the replication all formal objections to the plea are waived, and the rejoinder, being good in point of form and substance, is admitted to be true by the demurrer.

Rejoinder adjudged good.  