
    Case 23 — INDICTMENT
    March 22.
    Webb v. Commonwealth.
    APPEAL PROM LIVINGSTON CIRCUIT COURT.
    •Criminal Law — Stealing prom Warehouse. — The mere taking oí property of value from a warehouse or room mentioned in section 4 of article 6, chapter 29, General Statutes, is not sufficient to constitute the offense for which that statute provides a punishment. To constitute that offense there must be a breaking.
    The indictment in this case charges that the defendant did feloni-" oasly steal from a warehouse “one sack of tobacco of the value of forty cents.” Held — That the offense charged is only a misdemeanor.
    J. 11. HENDRICK poe appellant.
    P. W. HARDIN, Attorney-General, por appellee.
    Briefs not in record.
   CHIEF JUSTICE PRYOR

delivered the opinion op the court.

The grand jury of Livingston county returned into court an indictment against the appellant, William Webb, charging him with the felonious taking from a warehouse property of value, committed as follows: “ The said William Webb, in the county of Livingston, on the twentieth of January, 1888, did feloniously steal, take and carry away from the warehouse of C. B. Davis one sack of tobacco, of the value of' forty cents, the personal property of C. B. Davis, etc.” It is also charged in the indictment that the accused had been indicted, tried, convicted and sentenced to' imprisonment in the penitentiary for the crime of house-breaking, the judgment being confinement at hard labor for three years, and rendered by the Livingston Circuit Court in August, 1871, etc. The object of the second charge in the indictment was to have double punishment inflicted on the offender as provided by section 12 of article 1, chapter 29, General Statutes. That provision reads: “Every person convicted a second time of felony, the punishment of' which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction, etc.”

The accused having been convicted under the first indictment and sent to the penitentiary for three years, the jury under the present indictment doubled the period, and sent him for six years. The indictment is based on section 4 of article 6, chapter 29, General Statutes, that provides: “If any person shall feloniously, in the night or day, break any warehouse, storehouse, office, shop or room in a steam, wharf or other boat, whether such place be or be not a depository for goods, * * * with intent to steal, or shall feloniously take therefrom or destroy any goods, wares, or merchandise, or other thing of value, whether the owner or other person be or not in such house, office, room or shop, he shall be confined in the penitentiary not less than one nor more than five years.” It is nowhere charged in the indictment that the accused broke into the warehouse of Davis, but an averment charging him only with feloniously stealing and carrying away from the warehouse of Davis tobacco of the value of' forty cents, the property of Davis.

The gravamen of the offense under this statute is,, the breaking with an intent to steal, or feloniously taking therefrom property of value. The mere taking from a warehouse the..property of another, with a felonious intent, is not the offense created and punished by this statute. In such a case the offense would be either grand larceny or a misdemeanor, to-be determined by the value of the property stolen. In this case the felony charged is the felonious taking from the warehouse of Davis tobacco of the value of forty cents, and the offense, if proven, being that of petty larceny, it was error to charge the jury, or to adjudge from the facts alleged in the indictment that the offense was a felony, punishable by confinement in the State prison.

A statute will be found on page 424 of General Statutes, [chapter 29, article 11, section 4, punishing any person for stealing money, goods or chattels,. of the value of four dollars or upwards (now changed to ten dollars), either from the person of any one, or from his house, without violence or putting in fear, by confinement in the State prison not less than two. nor more than five years. It is plain, therefore, that the Legislature never intended to make the taking of personal property from a house, although with the intent to steal, a felony, if the value of the property was such as constituted the offense petit larceny.

The offense here charged is a misdemeanor, and nothing more, and in order to constitute it a higher degree of offense, the fact'of breaking the house, if true, should have been alleged, as this, under the statute, is the substantial cause of complaint.

The judgment below is, therefore, reversed,, and remanded, with directions to award a new trial, and for proceedings consistent with this opinion.  