Opinion
No. 5282
March 2, 1929.
APPEAL from the District Court of the Eleventh Judicial District, for Minidoka County. Hon. Hugh A. Baker, Judge.
Appellant was convicted of burglary in the first degree. Affirmed.
W.W. Mattinson and Barber Barber, for Appellant.
The information must charge that the building entered was the property of one other than appellant.
"Except in so far as the rule may be changed by statute, an indictment for burglary, whether at common law or under statute, must allege the ownership of the dwelling-house or other building broken and entered, if it is known, or it will be fatally defective; and must do so accurately so that there will be no variance between the allegation and the proof. The fact that the statute defining burglary does not expressly require an allegation as to ownership does not do away with the necessity of such allegation." (9 C. J. 1043, n. 91; 4 R. C. L. 432, 433; State v. James, 194 Mo. 268, 5 Ann. Cas. 1007, 1009, 92 S.W. 679; Beall v. State, 53 Ala. 460; Ward v. State, 50 Ala. 120, and cases cited; Rex v. White, 1 Leach C. C. (Eng.) 552; 1 Wharton's Criminal Law, 9th ed., § 816.)
One of the essential reasons for such requirement is to show that it was not the building of the defendant, but that he was a trespasser. (4 R. C. L. 433.)
To constitute an unlawful entry there must be a trespass; and there is an implied consent to enter a store building open for business. (9 C. J. 1017, 1018, n. 69, 75; State v. Newbegin, 25 Me. 500.)
In the case at bar, unless the record shows a larceny to have been committed, there is no fact in evidence from which an unlawful entry could be inferred. There can be no conviction until the fact that a crime has been committed is first established. ( State v. Sullivan, 34 Idaho 68, 17 A.L.R. 902, 199 P. 647.)
The court erred in instructing the jury that an entry for an unlawful purpose will be presumed from an unlawful act done after entry.
"The general rule is that, if it is proved that the accused committed the unlawful act charged, it will be presumed that the act was done with criminal intention, and it is for the accused to rebut this presumption. . . . . This rule, however, does no apply in the case of crime like burglary . . . . for which a specific intent is necessary. Here the burden is on the state to prove affirmatively that the act was done with the required specific intent. (9 C. J., sec. 121, p. 1064; sec. 138, p. 1079; sec. 152, pp. 1088, 1089; 16 C. J., sec. 47, p. 80; sec. 48, p. 81.)
Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.
An information charging burglary is not fatally defective because it fails to allege ownership of the premises entered. ( State v. Wansgaard, 46 Idaho 20, 265 P. 671; People v. Price, 143 Cal. 351, 77 P. 73; People v. Redman, 39 Cal.App. 566, 179 P. 725; People v. Mendoza, 17 Cal.App. 157, 118 Pac. 964; Stewart v. State, 27 Ariz. 240, 232 P. 556; State v. Mish, 36 Mont. 168, 92 P. 459; State v. Wright, 19 Or. 258, 24 P. 229.)
In burglary the breaking that was required at common law is no longer an essential element in this state. The entry with intent to commit larceny is the test of the crime. ( State v. Sullivan, 34 Idaho 68, 17 A.L.R. 902, 199 P. 647; 1 Nichols' Applied Evidence, p. 909.)
Proof of the larceny tends to show the entry and the intent. (1 Nichols' Applied Evidence, p. 909.)
Keeping watch while a crime is being committed renders the watcher equally guilty with the one committing the act for under statute in this state there is no distinction between principals of the first and second degree. (16 C. J. 133; C. S., sec. 8845.)
Appellant was convicted of the crime of burglary in the first degree for his alleged aid as a lookout in the burglarizing of a poolroom in Minidoka.
It is urged that the information was defective, that the evidence is insufficient to sustain the verdict, and that the court erred in its instructions to the jury.
The information did not set out the ownership of the pool-hall nor allege that it was the property of one other than the appellant. The only reasons for requiring such allegations are to permit greater certainty in the identification of the building entered and to show that the building entered was entered wrongfully. ( State v. Wilson, 36 S.D. 416, 155 N.W. 186.) The identity of the building is a necessary preliminary to any showing of a crime but its ownership, as such, is immaterial. ( State v. Wansgaard, 46 Idaho 20, 265 P. 671; People v. Redman, 39 Cal.App. 566, 179 Pac. 725; People v. Mendoza, 17 Cal.App. 157, 118 P. 964; Stewart v. State, 27 Ariz. 240, 232 P. 556; State v. Mish, 36 Mont. 168, 122 Am. St. 343, 92 P. 459.)
The statute, in effect, defines burglary as an entry with the intent of committing grand or petit larceny or a felony. (C. S., sec. 8400.) The information following, in substance, the statute was sufficient. ( State v. George, 44 Idaho 173, 258 Pac. 551; State v. Bowman, 40 Idaho 470, 235 P. 577; State v. Lundhigh, 30 Idaho 365, 164 P. 690.)
It appears from the record that the alleged burglary took place during business hours, while the poolroom was open to the public, and that the entry was made through the front door which the general public had been invited to use. With reference to these facts, appellant urges that the evidence is insufficient to sustain the verdict in that it does not appear that an unlawful entry was made.
An invitation to enter for a lawful purpose is not an invitation to enter for an unlawful purpose. In McCreary v. State, 25 Ariz. 1, 212 P. 336, the supreme court of Arizona, discussing this question, quoted from a decision of the supreme court of California in People v. Barry, 94 Cal. 481, 29 Pac. 1026, as follows:
"A party who enters with the intention to commit a felony enters without an invitation. He is not one of the public invited, nor is he entitled to enter. Such a party could be refused admission at the threshold, or ejected from the premises after the entry was accomplished."
In the later case of People v. Descheneau, 51 Cal.App. 437, 197 P. 126, it was said:
"One may, during business hours when a store is open to the public, enter therein with a view to purchasing goods, and if, after he enters, he concludes to steal, such act would constitute larceny only; but if when he entered he intended to commit larceny, his act, under the statute of this state, constitutes burglary, even though the proprietor of the store, having knowledge of his purpose in entering, does nothing to prevent it."
This position was reiterated in People v. Brittain, 142 Cal. 8, 100 Am. St. 95, 75 P. 314; People v. Ferns, 27 Cal.App. 285, 149 P. 802; see, also, Pinson v. State, 91 Ark. 434, 121 S.W. 751; State v. Mish, supra; State v. Stephens, 150 La. 944, 91 So. 349, 23 A.L.R. 286, and note.
The evidence discloses that appellant did not himself enter the building but it is contended by respondent that, while remaining outside, he was acting in the capacity of a lookout. Distinctions between accessories before the fact and principals in the first and second degrees have been abolished in this state. (C. S., sec. 8845.) Therefore, if the building was entered with the intention of committing larceny in furtherance of a common purpose to which appellant was a party, even though he himself made no entry, he would be guilty as a principal. (C. S., sec. 8093.)
The question of the intent with which the building was entered was one for the jury. ( State v. Dwyer, 33 Idaho 224, 191 Pac. 203; People v. Wagner, 43 Cal.App. 248, 184 P. 876.)
Appellant urges that want of consent to the taking of the property by its owner, Daugherty, was not shown. In some jurisdictions it is apparently the rule that where the owner of the property is available, he must testify specifically that the taking was without his consent. We think the better rule to be, however, that this want of consent can be shown by other circumstances which, as in this case, clearly establish that the taking was without the consent of the owner. ( People v. Walton, 159 App. Div. 289, 144 N.Y. Supp. 308; State v. Patchen, 36 Nev. 510, 137 P. 406; State v. Ward, 116 Minn. 516, 134 N.W. 115.)
Appellant urges that the court erred in instructing the jury to the effect that the intent to commit larceny, which must be established as an essential element of the offense, might be inferred from an unlawful entry followed by larceny.
There was no error in this instruction. Proof of the actual commission of larceny is competent evidence of the criminal intent at the time of the entry. ( Howard v. People, 62 Colo. 131, 160 P. 1060; Moseley v. State, 43 Tex. Cr. 559, 67 S.W. 414; People v. Curley, 99 Mich. 238, 58 N.W. 68; State v. Ward, supra.)
It is urged that the evidence is insufficient to sustain the verdict of guilty. A careful examination of the record discloses that, though conflicting, there is sufficient evidence to support the verdict. ( Chapman v. Rivas, 39 Idaho 718, 229 P. 745; State v. Neidermark, 35 Idaho 703, 208 Pac. 232; State v. White, 33 Idaho 697, 197 P. 824.)
The judgment is affirmed.
Budge, C. J., Wm. E. Lee, J., and Hartson, D. J., concur.