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ORANGE, March, 1842.

V.

Braintree.

L. B. Peck, for plaintiff.

If the plaintiff cannot retain the verdict on the merits of the case, it is upon the ground either that the selectmen had

Battles no authority to bind the town by the order, or that the plain

Town of tiff was guilty of a fraud, or that the selectmen acted under Bri such a mistake of the facts as avoids the contract.

1. As to the power of the selectmen. By the act of 1797 they are expressly authorized to agree on and settle all damages for laying out highways. Comp. Stat., p. 427, sec. 1. This power must be incident to the office independent of the statute.

2. There is nothing in the case tending to show any fraud in the plaintiff. When he purchased the land he was informed by the vendor that there existed a legal claim for damages, which claim, for aught that appears, he asserted in good faith ; and to prevent any further trouble to the town on the subject, the selectmen compromised the matter, by giving the order in suit.

On the execution of this order the plaintiff fenced out the road, and has permitted it to be travelled since that period.

3. If the agreement between the plaintiff's vendor and the former selectmen was a bar to proceedings under the statute, for the assessment of damages, yet there was no such mistake as avoids the order. If the selectmen who gave the order had no knowledge of the agreement, they had the means of knowledge, which is the same thing. Clark v. Dutcher, 9 Cowen, 674, and the authorities there cited. It was their duty to make inquiries of the former selectmen in relation to the matter, from whom they would ascertain all the facts. This they did not do, and the town cannot now say they are not liable. But what is conclusive on this point is the fact that the agreement with Bass did not conclude the plaintiff, as there was no road in contemplation of law. There was no survey, nor record of the opening of the road, as required by statute. Under these ciscumstances the plaintiff had a right to fence up the road, and, when legally opened, to claim damages. The settlement was a wise and judicious act on the part of the selectmen, and one with which the town ought to be satisfied.

4. As to the motion in arrest. This motion is founded upon the supposed insufficiency of the declaration. The

ORANGE, March, 1842.

declaration was evidently drawn in haste and without much care ; yet, its defects, it is believed, are cured by verdict.

Battles

V.

Town of Braintree.

The opinion of the court was delivered by

Williams, Ch. J.— The instruction of the court to the jury, that, on the facts stated in the exceptions, the plaintiff was entitled to recover, was undoubtedly correct.

The road had not been opened in the manner pointed out by statute, when the plaintiff purchased the farm of Bass. The plaintiff was told by Bass that there was a claim on the town for damages. Unless the road was opened in the manner pointed out by statute, the plaintiff could keep the road enclosed, unaffected by any previous conversation, or parol agreement, between Bass and the selectmen. It was competent for the selecimen to adjust the claim for damages, and draw an order therefor before opening the road, and this order, not having been paid, the plaintiff was entitled to recover of the town.

On the motion in arrest, we have only to remark, that, to enable the defendant to prevail, it must appear there was an omnission to state, in the declaration, matters of substance, and which cannot be supposed to have been proved on the trial. This declaration is very loosely and inartificially drawn. It may be considered, however, as containing the substance of a good declaration, and all the facts which would be necessary to a recovery, if they had been properly set forth. The consideration of the promise, the authority of the agents who made the promise, the promise and the breach, are set forth, and, after a verdict, we are inclined to sustain it. The judgment of the county court is therefore affirmed.

ORANGE, March, 1842.

State

Brady.

STATE OF VERMONT v. Thomas BRADY.
Where an indictment commenced thus ;-The grand jurors within and

the body of the county,' &c.,-it was held, on motion in arrest, that the
omission of the word for, after the word “and,' did not vitiate the indict.
ment.
An allegation, in an indictment for burglary, that the respondent broke and

entered the dwelling house of one person, with intent to steal his goods, and, having so entered, stole and carried away the goods of another person then and there being found, is not a misjoinder of offences.

INDICTMENT for burglary. The introductory part of the indictment was as follows—" The grand jurors within and the body of the county,” &c., and the respondent was charged with breaking and entering, in the night time, the dwelling house of Erastus Allen, with intent to steal the goods of said Erastus Allen, and stealing and carrying away certain articles, the goods and chattels of one Henry B. Allen, then found in said dwelling house.

After a verdict of guilty in the county court, the respondent moved in arrest of judgment for the insufficiency of the indictment. The motion was overruled and the respondent excepted.

Wm. Hebard, for respondent.

The question in this case is, whether two separate and distinct offences may be charged in one count.

In a civil suit, it would not be contended that two distinct causes of action could be declared upon in one count in the declaration.

The crime of burglary consists in breaking and entering a building of some sort, with intent to commit a crime. The charge in this case, so far as the crime of burglary is concerned, is that the respondent “ broke and entered the dwelling house of Erastus Allen," with intent to steal the goods of Erastus Allen, and when those facts were proved, the crime of burglary was proved to have been committed. There is then a further and a separate and distinct charge of simple larceny, which is that the respondent, after being in the house of Erastus Allen, stole the goods of Henry B. Allen.

The respondent might have been considered guilty of one of these charges by the jury, and not guilty of the other. VOL. XIV, W. R. IV.

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The jury returned a general verdict of guilty.

The sentence of the court upon that verdict would be disferent for the different crimes of burglary and larceny.

How then can the court know what sentence to pass upon the respondent ?

It has been determined, in Massachusetts, that a charge for “behaving rudely within the walls of a house of public worship,” and a charge for disturbing an assembly of people met for public worship, cannot be alleged in one count. Commonwealth v. Simons, 2 Mass. R. 163.

The same doctrine is fully sustained in 8 N. H. Rep. 161.

Chitty, Starkie and Swift are alike in the forms, and it is believed no form or precedent can be found that will afford authority for one like the present.

E. Farr, state's attorney, for prosecution.
The indictment is sufficient after verdict.

1. Alleging the theft, when actually committed, in the same
indictment with burglary, is according to all forms and is pro-
per although it is a distinct offence when committed separ-
ately. In burglary there is, necessarily, an intent to commit
some felony after the entering, and, if committed, it is only
evidence of such intention and is merged in the burglary; at
least, where that is punished, and is an incident of it. Com-
monwealth v. Hope, 22 Pick. R. 1. 2 Swift, 703. Aikens'
Forms. Chitty's Pleadings. State v. Nelson, 8 N. H. R.
164.

2. The allegation of whose goods respondent intended to commit larceny or did commit larceny is immaterial. It forms no part of the offence charged. The substance of the offence charged is breaking and entering with intent to commit a felony and committing the felony when entered, and the kind of felony intended must be set forth, as larceny, robbery, &c., and proved as laid, and no more is necessary. 2 Swift, 303.

3. The facts must now after verdict be taken to have been charged correctly in the indictment,and they certainly amount to a burglary and no more. That is, as the breaking and entering was with intent to commit larceny, and larceny was committed at the time and place intended, as part of the original transaction, it is merged as completely as if the other man's goods had been taken.

V.

4. Suppose the indictment had not alleged of whose goods Orange,

March, the larceny was intended or committed, as it need not, and

1842. then the facts had turned out to be as this indictment sets

State forth—that the entry was with intent to steal Thomas Allen's

Brady. goods, but the larceny committed was of H. B. Allen's goods -would this have cleared him of the crime charged ?

5. This cannot be material, for it can never be known whose goods respondent intended to take when he entered. And in fact the criminal, in nearly every case, has no intent about it. He only means to steal if he can find any thing to take, and in the end knows nothing, and cares as little, whose were the goods taken..

6. Suppose Brady was mistaken as to the owner of the goods taken, and took H. B. Allen's goods, supposing them to be Thomas Allen's, does this clear him from punishment or make the transaction consist any the more of distinct offences, so that the facts are not to be described in the indictment as laid ?

The opinion of the court was delivered by

Royce, J.-—It is said to be a rule applicable to indictments, that mere clerical and grammatical errors do not vitiate, unless they change a word, or render the meaning obscure. 1 Chit. Cr. L. 196. The omission of the word for in the introductory part of this indictment has done neither. It may have rendered the preceding word, and,' senseless and unmeaning, but can have no further effect. The grand jury within a county, when in regular organization and attendance upon the county court, are necessarily a grand jury both within and for the county.

The other objection relates to the manner of charging the offence. It is alleged that the respondent broke and entered the dwelling house of Erastus Allen, (in the night time, &c.,) with intent to steal the goods and chattels of said Erastus. Allen, in said dwelling house then being; and that, having so broken and entered said dwelling house, he stole certain goods and chattels, found in said house, belonging to Henry B. Allen. As the crime of burglary consists in breaking and entering a dwelling house, &c., in the night time, with intent to commit some felony therein, such intent must be alleged in charging the offence. And it is not enough to allege

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