Commonwealth v. M'Monagle

Sedgwick and Thacher,

justices, were of opinion, that as the word “ store ” is not used in the statute, and as it is not averred in the indictment, that the store broken was a building, judgment could not be rendered upon that clause in the statute, which describes, and provides for the punishment of, the offence of breaking, &c.

Sewall, J.,

doubted whether it was necessary to aver it; be *386 cause the word “store” has in this state a settled, known meaning, and is not used otherwise than as'and for the name of a building ; but as there were some doubts in his mind on the subject, he concurred with the other judges in recommending to the Solicitor-General to enter a nolle prosequi, as to that part of the charge.

The Solicitor-General entered a nol. pros, agreeable to the recommendation of the Court—as he did also on another indictment, drawn in the same form,' against Lemuel Lewis, who was charged with breaking, &c., the store of W. M. C., and on ! *518] * which Lewis had been found guilty, by the verdict of the jury.

Note.—According to my present recollection, the words “store,” and “shop,” have been used indiscriminately, in indictments upon this statute. And in common use, hare, they mean nearly, if not-precisely, the same thing. But 1 do not remember that exception has been taken to an indictment on account of the word il store 1 being used instead of “ shop.” In this case, it was first noticed and mentioned by Sedgwick, J.—[Storehouse is the proper word, or warehouse.—Ed.]