Nicholls v. State. NICHOLLS V. STATE. (68 Wis. 416.) Criminal law — burglary — constructive breaking, The defendant, with intent to rob an express car, secreted himself in a box which he procured to be placed in the car by the agents of the express company. Held, a constructive breaking. ONVICTION of burglary. The opinion states the case. CONVI H. W. Barney and John Turner, for plaintiff in error. Attorney-General, for defendant in error. CASSODAY, J. There is undisputed testimony on the part of the State to the effect that Saturday, July 25, 1885, the plaintiff in error was stopping at a hotel in Black River Falls, having his name registered as W. H. Eldredge, and a room assigned him opposite thereto. He had then been there about three days. In the afternoon of the day named he had a box or chest taken from the depot to his room, weighing about one hundred and fifty pounds. No evidence was given as to what was in it. About three o'clock in the afternoon of the same day he arranged with the local express agent for the sending of a box to Chicago, then at the hotel, and represented by him as weighing about two hundred and twenty-five pounds. By his prearrangement, the box was brought to the depot just in time for the 7:50 P. M. Chicago train, and was shipped in the express car thereon by the local agent, as directed. Soon after the starting of the train, there seems to have been a suspicion as to the contents of the box. The suspicion was increased as telegrams were received at different stations from Black River Falls, respecting the box. Finally, being convinced by such dispatches that there was a man in the box, the train-men telegraphed forward to Elroy to secure the presence of an officer on the approach of the train to make the arrest. On reaching Elroy, in the night, this box in the express car was opened, and the plaintiff in error was found therein, with a revolver, billy, razor, knife, rope, gimlet and a bottle of chloroform. There was also evidence tending to show that there were packages of money in the custody of the express agent on the car; that such agent had an assistant Nicholls v. State. far as Elroy; that from there to Chicago such car was usually in charge of only one man; that after the arrest, and when asked his object in being thus shipped in the box, the prisoner voluntarily admitted, in effect, that he had considered his chances carefully; that he went into the thing as a matter of speculation; that he needed money, and needed it quickly; that he expected to get fully $50,000; that had he passed out of Elroy he would have got off with the money; that in a case of that kind, if a human life stood in his way, it did not amount to a snap of the finger. [Omitting other questions.] The question recurs whether the proofs show that there was a breaking in fact within the meaning of the statute. Certainly not in the sense of picking a lock, or opening it with a key, or lifting a latch, or severing or mutilating the door, or doing violence to any portion of the car. On the contrary, the box was placed in the express car with the knowledge and even by the assistance of those in charge of the car. But it was not a passenger car, and the plaintiff in error was in no sense a passenger. The railroad company was a common carrier of passengers as well as freight. But the express company was exclusively a common carrier of freight, that is to say, goods, wares and merchandise. As such carrier, it may have at times transported animals, birds, etc., but it may be safely assumed that it never knowingly undertook to transport men in packages or boxes for special delivery. True, the plaintiff in error contracted with the local express agent for the carriage and delivery of such box, but neither he nor any one connected with the express car or the train had any knowledge or expectation of a man being concealed within it. On the contrary, they each and all had the right to assume that the box contained nothing but inaLÍ mate substance- goods, wares or merchandise of some descriptica The plaintiff in error knew that he had no right to enter the epress car at all without the consent of those in charge. The ori dence was sufficient to justify the conclusion that he unlawfully gained an entrance without the knowledge or consent of those in charge of the car, by false pretenses, fraud, gross imposition and circumvention, with intent to commit the crime of robbery or lar ceny, and in doing so, if necessary, the crime of murder. This would seem to have been sufficient to constitute a constructive breaking at common law, as defined by Blackstone, thus: "To come down a chimney is held a burglarious entry; for that is as Nicholls v. State. inuch closed as the nature of things will permit. So also to knock at the door, and upon opening it, to rush in with a felonious intent; or under pretense of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance in order to search for traitors, and then to bind the constable and rob the house. All these entries have been adjudged burglarious, though there was no actual breaking, for the law will not suffer itself to be trifled with by such evasions, especially under the cloak of legal process. And so if a servant opens and enters his mas ter's chamber door with a felonious design; or if any other person, lodging in the same house or in a public inn, opens and enters another's door with such evil intent, it is burglary. Nay if the servant conspires with a robber and lets him into the house by night, this is burglary in both; for the servant is doing an unlawful act, and the opportunity afforded him of doing it with greater ease rather aggravates than extenuates the guilt." 4 Bl. Com. 226, 227. So it has frequently been held in this country that "to obtain admission to a dwelling-house at night, with the intent to commit a felony, by means of artifice or fraud or upon a pretense of business or social intercourse, is a constructive breaking, and will sustain an indictment charging a burglary by breaking and entering." Johnston v. Comm., 85 Penn. St. 54; s. c., 27 Am. Rep. 622, and 82 Penn. St. 306; State v. Wilson, 1 N. J. Law, 439; s. c., 1 Am. Dec. 216; State v. McCall, 4 Ala. 643; s. c., 39 Am. Dec. 314; Bish. Stat. Crimes, § 312, and cases there cited. The same was held in Ohio under a statute against "forcible" breaking and entering. Ducher v. State, 18 Ohio, 308. But it is claimed that in this State the common-law doctrine of constructive breaking has no application to a case of this kind, and in fact is superseded by statute, except in so far as it is re-affirmed. Thus: "Any unlawful entry of a dwelling-house or other building with intent to commit a felony, shall be deemed a breaking and entering of such dwelling-house or other building within the meaning of the last four sections." R. S., § 4411. This section merely establishes a rule of evidence whereby the scope of constructive breaking is enlarged so as to take in "any unlawful entry of a dwelling-house or other building with intent to commit a felony." See State v. Kane, 63 Wis. 262. It in no way narrows the scope of constructive breaking, as understood at common law, but merely enlarges it in the particulars named. In all other respects such constructive breaking signifies Washburn v. Dosch. the same as at common law. It necessarily follows that as the word "break," used in section 4410, had obtained a fixed and definite meaning at common law when applied to a dwelling-house proper or other buildings within the curtilage, the legislature must be presumed to have used it in the same sense when therein applied to other statutory breakings. Ex parte Vincent, 26 Ala. 145; s. c., 62 Am. Dec. 714; Bish. Stat. Crimes, §§ 7, 88; Ducher v. State, supra. That is to say, they must be deemed to have used the word as understood at common law in relation to the same or a like subject-matter. We must hold the evidence sufficient to support the charge of breaking. By the COURT.-- The judgment of the Circuit Court is affirmed. Judgment affirmed. An agreement, upon the sale of a stock oi goods and the good-will of a business, not to re-engage in that business in the same village for five years, is valid.* An oral contract fully executed by one at the time of making is not within the statute of frauds, although by its terms not to be performed by the other within a year. A CTION on a promissory note. The opinion states the case. The defendant had judgment below. John D. Wilson, for appellant. Brooks & Dutcher, for respondent. CASSODAY, J. [Omitting minor points.] The good-will of an established and successful business is undoubtedly of much value to the possessor of such business, and may be sold with it. Wallingford v. Burr, 17 Neb. 137, and cases there cited. But while such sale will entitle the purchaser to a certain limited protection, it will not of itself alone be sufficient to preclude the seller from engaging in a separate and independent business of the same kind in the *See Diamond Match Co. v. Roeber, ante, 464. VOL. LX - 110 Washburn v. Dosch. same village or city. Pearson v. Pearson, L. R., 27 Ch. Div. 145, overruling Labouchere v. Dawson, L. R., 13 Eq. 322, in so far as it held that such seller so engaged must not solicit the customers of the old business to give their custom to himself. See also Cottrell v. Babcock P. P. M. Co., 54 Conn. 122; Bergamini v. Bastian, 35 La. Ann. 60; s. c., 48 Am. Rep. 216. In order to preclude the seller from engaging in such separate and independent business, there must be an agreement to that effect based upon a good and valuable consideration and not contrary to law or public policy. The evidence seems to be sufficient to support the finding, that as a part of the contract of sale, the plaintiff agreed with Dosch not to again engage in the dry-goods and grocery trade in the village for a period of five years. The evidence is undisputed that he broke such agreement, if he ever made it. Manifestly, the purchase was made with the expectation of both parties that Dosch would continue the same business for the period of at least five years, in the same village and in the same building; for he not only purchased the goods, furniture and fixtures therein, but took from the plaintiff a contemporaneous lease of the building for the period named. There was evidence tending to prove, that as an inducement to Dosch to make the sale, the plaintiff spoke of the goodwill of the business and placed a high estimate upon its value. That value consisted largely in the probability of the plaintiff's former customers thereafter giving their trade to Dosch at the same store. Of course that probability would be very much strengthened, and such value correspondingly increased by including in the contract of sale a binding agreement upon the part of the plaintiff to abstain thereafter from engaging in the same business in the same village. In the language of BRETT, M. R., "such a contract added an indelible feature to the business, and increased the value of the goodwill." Jacoby v. Whitmore, 49 Law T. (N. S.) 337; 28 Alb. L. J. 510. This being so, such an agreement would necessarily be a very substantial inducement to the purchaser to make such purchase, and to pay or agree to pay the price named. These things being so, we think the jury were warranted in finding that the plaintiff made such agreement in consideration of the purchase. That agreement was in no sense an absolute restraint upon trade. The plaintiff was still at liberty to engage in any and every other kind of business in the same village. He was moreover still at liberty to engage in the same business in any other village or city |