Jennings v. Commonwealth

Upon an indictment, lor burglary, charging in one connt a breaking and entering in the night time with intent to steal and an actual larceny; and a general verdict of guilty, “but not in the night time;’’ the attorney for the Commonwealth may enter a nolle prosequi as to so much of the indictment as charges the breaking and entering, and the defendant be sentenced for the larceny.

Writ oe ERROR to reverse the judgment in a criminal proceeding against the plaintiff in error. Plea, in nullo est erratum. The record showed that an indictment was found and returned into the superior court for Suffolk, for the transaction of criminal business, at February term 1869, charging that the plaintiff in error on July 9, 1866, at Boston in said Suffolk, “ with force and arms, a certain building there situate, to wit, the shop of one George H. Gooding, in the night time of said day, did break and enter, with intent then and therein to commit the crime of larceny,” and certain gold coin, of the value of $13,000 and property of Gooding, “ in said building then being found,” “ did then and there in said building feloniously steal, take and carry away,” against the peace, &c.; that to this charge he pleaded that he was not guilty; that on his trial at March term 1869, before Lord, J., the jury returned a verdict that he was guilty “but not in the night time;” that the district attorney then entered a nolle prosequi as to so much of the count as charged breaking and entering; and that the court thereupon sentenced the plaintiff in error to be punished by imprisonment in the state prison for four years. The assignment of errors was : 1. “ That when the said judgment was rendered the said Jennings was not convict by his own plea, or by verdict of a jury, of any offence in law.” 2. “ That the said judgment and sentence were rendered and imposed without authority of law.”