State v. Saxton's

Saxton's Case.

Sam Saxton, a free negro, was indicted for breaking and entering the store of J. H. Stevenson, in the night time and stealings the goods of J. H. S. It was ruled by the court — 1st. That as it was proved the shop belonged to or was rented by Thomas Stevenson, who rented to J. H. S., an undivided part of the shop, there being but one common door of entrance, they were in the joint possession of the shop, and the indictment should have averred it to be their common shop, and the defendant could not be convicted of the compound larceny. (BLACK, J. hesitante.) 2d. That the defendant could not be convicted of the simple larceny, (Archb. 215, 251,) because he was not charged in the indictment to be a free negro, and he was proved to be so.Dig. 134, 146-7. (T. CLAYTON, Chief Justice, dissenting.) 3d. That it is not necessary the indictment should charge that the breaking, c. was with intent to commit a larceny; it is sufficient to aver that he broke and entered, and stole the articles charged. Kent, October Sessions, 1836, (1 Hale, 560; 2East C. L. 514; Archb. 251.) *Page 534