Bromley v. People

Citations

• 150 Ill. 297
• 37 N.E. 209
• 1894 Ill. LEXIS 1611

Syllabus

<p>1. Criminal law — burglary—denned. Burglary, at the common law, is where a person breaks and enters-any dwelling house by night, with intent to commit a felony therein, whether such felonious intent be executed or not. But under our statute burglary may be committed by day as well as by night.</p> <p>2. Same — sufficiency of indictment for burglary. Under section 408 of the Criminal Code, and section 36 of the same code, as amended in 1885, it is unnecessary to charge in an indictment that the crime was committed either “in the night time” or “in the day time,” in order to constitute a charge of burglary under the existing law of this State. An indictment which fails to allege that the crime was committed either by day or by night, would clearly be a good charge of burglary committed in the day time.</p> <p>3. Where a burglary is not alleged to have been committed in the night time, it would seem that only the punishment provided for burglary in the least aggravated degree can be imposed.</p> <p>4. Same — degrees in punishment. Under our statute, burglary committed in the day time, or in respect to a building not a dwelling house, is punishable by imprisonment for not less than one nor more than twenty years. If, however, the offense is committed in the night time, and in respect to a dwelling house, then the minimum punishment is five years; and if the burglary of a dwelling house is in the night time, and the burglar has a deadly weapon, a deadly drug or an ansesthetic upon his person or in his possession, then not only is the minimum imprisonment five years, but there is no limit to the maximum term of imprisonment.</p> <p>5. Same — proof of burglary as charged. Where the time laid in an indictment is material, then it must be specifically proved as set out in the indictment. And it is also a general rule that all descriptive averments in an indictment must be proved as laid. So a charge of burglary in the night time is not sustained by proof of a burglary com