The State v. Canney

By the Revised Statutes, ch, 436, § 9, it is provided that if any person shall break and enter, &c. any shop, store, &c., and shall therein commit larceny, he shall be punished. The indictment alleges that he broke and entered a store and stole from the shop aforesaid. The words “ then and there in the shop” may be rejected as surplusage. Where an indictment alleged that the prisoner “ suffered persons to play at cards and other unlawful games,” and the objection was taken that this was too uncertain, and that the particular game should have been specified, it was held that the words “ other unlawful games” might be rejected as surplusage. Commonwealth v. Bolkom, 3 Pick. 281. So where the indietmeat alleged that the prisoner, “ in and upon one Peddy Harvey, did make an assault, and her the said Peddy Hunt then and there did beat, wound and ill treat,” it was objected that the mistake in calling Peddy'Harvey by the name of Peddy Hunt vitiated the indictment; but the court seemed to be of the opinion that the clause in which she was called Peddy Hunt might be rejected as surplusage. Commonwealth v. Hunt, 4 Pick. 252. So in the case of the Commonwealth v. Arnold, 4 Pick. 251, the indictment alleged that the prisoner, being an innholder duly licensed, permitted persons to play at the game of cards, &c. It was objected to the phrase “ at the game of cards,” that it was not specific enough, there being many games of cards. It was held that as the statute makes it unlawful to permit playing at cards, the words “the game of” might be struck out as surplusage. The words shop and store are synonyjmous, a shop being only an inferior kind of store.

It is contended that the words “ shop ” and “ store,” in the 9th section of chapter 215 of the Revised Statutes are synonymous, and that, therefore, there is no defect in the indictment. In the United States, shops for the sale of goods of any kind, by wholesale or retail, are often called stores; that is, we use the word store for storehouse; the word which properly means the quantity of a thing accumulated or deposited, as a designation of the place of deposit. “ Shop ” is defined by Richardson to be a “ place for the purpose of containing merchandize for sale, protected from the weather.” Webster defines it as “ a building in which goods, wares, drugs, &c., are sold by retail also as “ a building in which mechanics work.” In conversation, we speak of a store as a place where goods are exposed for sale, thus giving it the same meaning as shop. Still, we recognize a difference between the meanings of these two words. Thus we do not call the place where any mechanic art is carried on a store, but we give it the name of shop, as a tailor’s shop, a blacksmith’s shop, a shoemaker’s shop. We usually understand by the word store, a place where goods are exhibited for sale, but we do not always mean a store when we use the word shop. Now as we do not use the words “ shop ” and “ store ” as synonymous, there is no reason to suppose that they were intended to be so used in the statute, for if they were so considered, only one of these appellations would have been necessary, and as there is a recognized difference in their meaning, we cannot consider them synonymous. As these words are not synonymous, the larceny is not alleged to have been in the place into which the person broke and entered. The statute punishes the offence of breaking and entering a store, and therein committing larceny, according to the ninth section, or according to the seventh section, with intent to commit larceny. The words “then and there in the shop aforesaid,” cannot be rejected as surplusage, because then the indictment would be left without an allegation, either that the prisoner committed larceny in the store, or that he had an intent to commit larceny. The word shop is descriptive of the place where the- larceny was committed. Now if he merely broke and entered the store without committing larceny, or without an intent to commit larceny, he cannot be punished under this indictment. As the word shop describes the place where the larceny was committed, it is material, and descriptive averments must be proved, and when it is proved that the larceny was committed, in a shop, there is neither allegation nor averment that it was committed in a store. It is a general rule that descriptive averments must be literally proved, and that rule must be our guide in the present case. The State v. Copp, 15 N. H. Rep. 212. Upon the demurrer, therefore, there must be