Summary
In Richard, for example, the defendant was sentenced to not more than eight years on a charge that carried a maximum sentence of five years.
Summary of this case from State v. FletcherOpinion
No. 4305.
Argued April 6, 1954.
Decided June 23, 1954.
An indictment for breaking and entering a gasoline filling station and committing larceny therein which did not allege or describe the station as falling within those buildings enumerated in R. L., c. 453, s. 2, properly lies within s. 3 relating to "any building."
While the respondent in an indictment for breaking, entering and committing larceny was sentenced by a court of competent jurisdiction in excess of that authorized by law (R. L., c. 453, s. 3) his imprisonment thereunder was not unlawful.
In such case, however, the sentence was required to be amended to provide both a maximum and minimum term with imprisonment limited to that provided by the applicable statutes (Ib., s. 3; c. 429, ss. 20, 21).
INDICTMENT, for breaking and entering in the nighttime and larceny. The main parts of the indictment read as follows: "John C. Richard . . . on the ninth day of June in the year of our Lord one thousand nine hundred and fifty-three at Manchester . . . with force and arms about the hour of three in the morning . . . the filling station of Lawrence E. Stone situated at 127 Elm Street in said Manchester, feloniously did break, enter and thirty-five pennies of the national currency of the United States . . . all of the value of thirty-five cents, of the property of said Lawrence E. Stone, in the filling station then and there being, then and there feloniously did steal, take and carry away. . . ."
Trial by jury on September 24, 1953, resulted in a verdict of guilty. Defendant was sentenced to be imprisoned at hard labor in the state prison for a term not more than 8 years nor less than 5 years. He thereafter filed a motion to set aside the verdict and for a new trial because the verdict was not supported in fact or law, there was no evidence from which the jury could reasonably find that the breaking and entering could not have been perpetrated in the daytime, and the verdict being clearly erroneous and unsupported by the evidence justice requires he be granted a new trial. This was denied subject to defendant's exception.
On December 21, he filed a motion that he be discharged from his imprisonment because he was indicted, tried, found guilty and sentenced under R. L., c. 453, s. 2, for an act which did not constitute an offense thereunder namely breaking and entering a filling station. This was denied subject to exception.
On January 8, 1954, defendant moved in arrest of judgment because the indictment was fatally defective and in violation of Const., Pt. I, Art. 15. This motion was also denied and all of defendant's exceptions were reserved and transferred by Wescott, J.
Louis C. Wyman, Attorney General and Conrad Danais, county solicitor (Mr. Wyman orally), for the State.
James M. Winston (by brief and orally), for the defendant.
Defendant's motion to set aside the verdict and for a new trial was properly denied. A police officer testified that he checked the filling station in question between 1:00 and 1:45 A.M. on June 9, 1953. At 3:50 he noticed the defendant walking south on Elm Street and at 4:45 A.M. he observed him walking west on Central Street when he stopped him and brought him to the police station. At 5:41 he returned to the filling station and found a window pane broken at the catch. Two inspectors testified that defendant, after being warned of his rights, told them, upon questioning at the police station, that he came to Manchester the previous day and registered at a hotel. About 3 o'clock that morning of June 9 he got up, walked around the city and proceeded down a street, the name of which was unknown to him, went to the rear of a filling station, broke a light of glass, entered and took 35 pennies out of the cash register. He received slight cut on the ring finger of his left hand in breaking the light of glass.
The owner of the filling station testified that all the windows were locked when the station was closed at midnight. At about 5:30 A.M. when he was called there he found a pane of glass broken and 35 to 50 pennies which he had left in the cash register were missing.
This was sufficient evidence for the jury to find beyond a reasonable doubt that the defendant broke and entered this filling station and stole, took and carried away 35 pennies therefrom. The record discloses no basis for the granting of a new trial (R. L., c. 398) and defendant's motion therefor and to set aside the verdict was properly denied.
We are of the opinion that the indictment is one under R. L., c. 453, s. 3, and not under s. 2. It does not allege that the breaking and entering was in any of the different categories of buildings enumerated in said section 2. State v. Gove, 34 N.H. 510, 515; State v. Wilson, 47 N.H. 101, 103. The filling station involved contained automobile supplies sold at retail as well as cigarettes and portable radios. It might have qualified as a "store" within the meaning of said section (State v. Canney, 19 N.H. 135; State v. Charette, 98 N.H. 477) and if so described would have come under its provisions. State v. Dunklee, 76 N.H. 439, 441. Since it was not, the offense charged was one under section 3 relating to "any building." Under this section it is immaterial whether the breaking and entering was in the daytime or not.
The maximum sentence under R. L., c. 453, s. 3, is "not more than five years." The defendant was sentenced for a term of not more than 8 years nor less than 5 years. The sentence was therefore in excess of that authorized by law. However, since the defendant was properly convicted by a court having jurisdiction (see Lewis v. Commonwealth, 329 Mass. 445) his imprisonment to date has been lawful. The sentence should be amended as to both maximum and minimum term (R. L., c. 429, ss. 20, 21) so as to fall within the limit of imprisonment prescribed by R. L., c. 453. s. 3. See Doyle v. O'Dowd, 85 N.H. 402. The applicable provisions of R. L., c. 429, will then apply under the amended sentence as if it had been originally imposed.
Remanded.
All concurred.