Opinion
No. 20321. Department Two.
April 18, 1927.
BURGLARY (6) — INFORMATION — REQUISITES — ALLEGATION OF OCCUPANCY. An information for burglary of a dwelling house, alleging the occupancy of the house for a dwelling, is sufficient without allegation as to the ownership of the house.
CRIMINAL LAW (298) — INSTRUCTIONS — INFLUENCE OF ARGUMENTS OF COUNSEL. Error cannot be assigned upon an instruction to disregard any statement made by counsel unless borne out by the evidence.
Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered January 29, 1926, upon a trial and conviction of burglary. Affirmed.
E.C. Dailey and A.E. Dailey, for appellant.
C.T. Roscoe, John C. Richards, and Charles R. Denney, for respondent.
The information upon which the appellant was tried and convicted of burglary contained the allegation that the appellant entered in the night-time
". . . the dwelling house of a party whose true name is unknown to this prosecuting attorney except the name of `Frank,' in which there was at the time a human being, . . ."
[1] It is contended by the appellant that the allegation of ownership of the dwelling was insufficient and that there was no evidence that the place entered was a dwelling. The authorities are that, where the true name of the owner of property entered by a burglar is unknown, it is not necessary to state the ownership, but that it must be stated that the ownership is not known. 9 C.J. 1043; 4 R.C.L. 432.
It is true that the state did not attempt to prove who had the legal title to the building, and this was unnecessary, for occupancy is the element which must be alleged and proved, and the testimony in this case shows that the house was occupied at the time of the entry by a person who bore the name of "Frank" and was being used by him at that time as a place to live in. Possession is enough as against burglars, and this is true even though the possession may be wrongful. Wharton's Criminal Law (11th ed.), vol. 2, § 1018; McClain on Criminal Law, vol. 1, § 508; Lewis v. State, 85 Miss. 35, 37 So. 497; Favro v. State, 39 Tex. Cr. 452, 46 S.W. 932; 9 C.J. 1044.
[2] Another error is predicated upon an instruction given by the court in which the jury were told that they should disregard any statement made by counsel, unless borne out by the evidence. A fair interpretation of this instruction is that the jury were not to regard any statement made by counsel upon either side as to what the evidence was unless that statement was borne out by the evidence itself. This is an instruction which is repeatedly given and is not subject to criticism when properly interpreted. State v. Burton, 27 Wn. 528, 67 P. 1097; State v. Lance, 94 Wn. 484, 162 P. 574; State v. Neadeau, 137 Wn. 297, 242 P. 36.
Finding no error, the judgment is affirmed.
PARKER, TOLMAN, and ASKREN, JJ., concur.