Armour v. State

• Decision Date: 23 April 1941
• Docket Number: A-9773.
• Parties: ARMOUR v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

112 P.2d 1116

72 Okla.Crim. 44

ARMOUR v. STATE.

No. A-9773.

Court of Criminal Appeals of Oklahoma

April 23, 1941

Syllabus by the Court.

1. An information or indictment which, construed under the ordinary rules of construction, states all the essential elements of the crime charged sufficiently to enable a person of common understanding to know what is meant, and with sufficient particularity to enable a defendant to prepare for his trial and to plead the judgment in bar, if again informed against for the same offense, is sufficient.

2. In an indictment for second-degree burglary, the premises are sufficiently described as being "a certain building located at 801 East 1st Place, in the City of Tulsa Oklahoma, and being then and there occupied by and in the possession of Nichols Wire Sheet and Hardware Company, a corporation, certain personal property of value (being) in said building kept and contained."

3. Where evidence discloses facts from which the jury may legitimately deduce either of two conclusions, a motion to advise verdict should be denied.

4. All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.

5. The opening of a closed door in order to enter a building may constitute a breaking under sec. 1931, O.S.1931, 21 Okl.St.Ann. § 1435.

6. Where an accused in furtherance of a conspiracy unlocks a door from the inside, and his codefendants open the closed door from the outside and enter, within a short interval of time, with the intent to commit a felony, accused is properly charged with breaking the outside door and entering.

7. Evidence held sufficient to support a charge of burglary in the second degree.

Appeal from District Court, Tulsa County; Wm. M. Thomas, Judge.

Martin Armour was convicted of burglary in the second degree, and he appeals.

Judgment affirmed.

Ward Justus & Ward, of Tulsa, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Jess L. Pullen and Sam H. Lattimore, Asst. Attys. Gen., for defendant in error.

JONES Judge.

The defendant, Martin Armour, was charged jointly with Raymond Pilgrim and Edgar Armour by indictment on April 17, 1939, in Tulsa County, with the crime of robbery in the second degree. Defendant was granted a severance, was tried in the District Court of Tulsa County, convicted, and sentenced to serve a term of two years in the State Reformatory at Granite, from which judgment and sentence he appeals to this court.

The defendant contends that:

1. The trial court erred in overruling his demurrer to the indictment.

2. The trial court erred in refusing to instruct the jury to acquit the defendant.

3. The verdict and judgment are contrary to the evidence and the law.

Section 1931, O.S.1931, 21 Okl.St.Ann. § 1435, states:

"Every person who breaks and enters in the day time or in the night time, either:

1. Any building within the curtilage of a dwelling house, but not forming a part thereof; or,

2. Any building or any part of any building *** in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree."

The indictment is as follows: "*** in said Tulsa County, and State of Oklahoma, on the 22nd day of March, in the year of our Lord, One Thousand Nine Hundred and Thirty-Nine, and prior to the finding of this indictment, Raymond Pilgrim, Edgar Armour and Martin Armour and each of them, did then and there unlawfully, wilfully, burglariously and feloniously, in the nighttime, break and enter into a certain building located at 801 East 1st Place, in the City of Tulsa, Oklahoma, and being then and there occupied by and in the possession of Nichols Wire Sheet and Hardware Company, a corporation, by breaking open the outer doors and windows of said building, with the felonious and burglarious intent then and there upon the part of said defendants and each of them, to steal therein, by then and there taking, stealing and carting away, without the consent of the owner thereof, certain personal property of value in said building kept and contained, the property of the said Nichols Wire Sheet and Hardware Company, a corporation, with the unlawful and felonious intent then and there upon the part of said defendants, and each of them, to deprive the owner thereof permanently and to convert the same to their own use and benefit, ***."

As to the defendant's contention that this indictment is subject to demurrer, he cites the case of Simpson v. State, 5 Okl.Cr. 57, 113 P. 549, in which it is stated: "(a) An indictment for burglary, whether at common law or under statute, must allege every fact and circumstance necessary to constitute the offense, including time, place, ownership, and description of the premises." An examination of the indictment reveals that it sets out the breaking and entering of a specified building. It charges an intent to steal personal property of value, deprive the owner thereof and to convert said property to the use of defendants. It states the time of the offense as March 22, 1939, in the nighttime; the place as Tulsa, Oklahoma; the ownership of the building, as occupied by and in the possession of said hardware company (Simpson v. State, supra); and describes the premises as a building at 801 East 1st Place in which personal property belonging to said hardware company was kept and contained.

In Jackson v. State, 31 Okl.Cr. 30, 237 P. 129, 130, a case of burglary in the second degree, this court held: "An information which, construed under the ordinary rules of construction, states all the essential elements of the crime charged sufficiently to enable a person of common understanding to know what is meant, and with sufficient particularity to enable a defendant to prepare for his trial, and to plead the judgment in bar, if again informed against for the same offense, is sufficient."

In his brief, defendant cites at length passages from Corpus Juris and Corpus Juris Secundum relating to buildings "not adjoining to or occupied with a dwelling-house" and "other buildings." Our statute (sec. 1931, supra) states positively "any building within the curtilage of a dwelling house, but not forming a part thereof; or" "any building," etc.

This court has never held that it was necessary under sec. 1931, supra, to aver that the building was not adjoined to a dwelling house, but in charging an offense under either of secs. 1927, O.S.1931, 21 Okl.St.Ann. 1431, or 1928, O.S.1931, 21 Okl.St.Ann. 1432, the statutes dealing with burglary of the dwelling, it is necessary to allege that the building is a dwelling house. And quoting from 12 C.J.S., Burglary, § 35(d), page 695: "Where the burglary statute punishes the crime irrespective of the location of the building, it is not necessary to allege that it was one not adjoining to, or occupied as, a dwelling house."

In 9 C.J., Burglary, § 71(6), page 1040, it is stated: "Under a statute punishing the breaking and entering of any 'building' or any 'house,' it has generally been held that the indictment, if it describes the premises by a term which does not necessarily imply a building or a house, must go further and allege that they were a building or a house. But this is not necessary where the term used necessarily implies that the premises were a building or a house."

We are of the opinion that defendant's demurrer to the sufficiency of the information was properly overruled, since this information contains all of the essential allegations necessary to constitute the crime of second-degree burglary to make it good upon its face, sufficiently informs the defendant of the charge upon which he would have to defend and bars any...