Davis v. Commonwealth
| Decision Date | 19 January 1922 |
| Citation | 110 S.E. 356 |
| Parties | DAVIS . v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
Error to Corporation Court of City of Newport News.
Annie Davis was convicted of burglary, and brings error. Reversed.
W. R. Walker and J. Thomas Newsome, both of Newport News, for plaintiff in error.
Jno. R. Saunders, Atty. Gen., and Leon M. Bazile, Asst. Atty. Gen., for the Commoa-wealth.
KELLY, P. The defendant, Annie Davis, under indictment for burglary was convicted and sentenced to confinement in the penitentiary for a term of five years.
The indictment charged that in the nighttime she broke and entered the dwelling house of one E. P. Fowlkes, and "feloniously and burglariously" stole and carried awaytherefrom the sum of $412.50 belonging to one Dolly Wingfleld.
The case is before us for review, and the sole assignment of error is that the court refused to set aside the verdict as being contrary to the law and the evidence.
It is insisted that the evidence failed to show that the alleged theft was committed in a house owned by E. P. Fowlkes, and also failed to show that the defendant was the thief. As to this contention we express no opinion, because the judgment will have to be reversed and a new trial awarded upon another-ground, namely, that there was no "breaking" within the meaning of the familiar definition of burglary.
The evidence tends to show that, as contended by the commonwealth, the theft was committed in a house owned by Fowlkes, and in a room therein occupied and controlled by Dolly Wingfleld, the owner of the stolen money. The testimony of Fowlkes and Dolly Wingfleld conclusively shows that the defendant was and long had been their intimate associate and friend, and that with their consent and encouragement she carried a key to the house, was "just the same as at home there, " was "over there day and night, and anything she wanted there she came and got it." She was not in any sense a servant or employe of the owners, nor a carekeeper or custodian of the property. Her relationship was that of a companion and friend, her right to enter the premises up to the time of the alleged theft being as free and unlimited as that of Dolly Wing-field herself. She came and went at will; she ate and slept there whenever she pleased; and, in short, as expressed by Fowlkes, she was "treated the same as home folks."
Breaking, as an element of the crime of burglary, may be either actual or constructive. There is a constructive breaking when an entrance has been obtained by threat of violence, by fraud, or by conspiracy. Min. Syn. Cr. Law, p. 92; Clarke v. Commonwealth, 25 Grat, (66 Va.) 912. The entrance to the premises in the instant case was not obtained by either of these means, and cannot be classed as a constructive breaking.
Actual breaking involves the application of some force, slight though it may be, whereby the entrance is effected. Merely pushing open a door, turning the key, lifting the latch, or resort to other slight...
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Ex parte Gentry
...therein but with intent to steal, and actually stole and carried away his master's goods, committed burglary. In Davis v. Commonwealth, 132 Va. 521, 110 S.E. 356 (1922), the court held that a breaking, as an element of the crime of burglary, could be either actual or 6 2 Bishop, New Comment......
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Lacey v. Com., Record No. 1407-08-1.
...this element of the crime.'" Johnson v. Commonwealth, 221 Va. 872, 876, 275 S.E.2d 592, 594-95 (1981) (quoting Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357 (1922)). It is undisputed for purposes of this appeal that Lacey entered H.F.'s open garage in the daytime without any ph......
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Speller v. Commonwealth
...18.2-90, 18.2-91 ). "Breaking, as an element of the crime of burglary, may be either actual or constructive." Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357 (1922). The evidence presented in this case was sufficient to find Speller guilty of burglary of Bare’s home. Bare testifi......
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Seis v. Commonwealth, Record No. 1619-06-3 (Va. App. 11/27/2007)
...§§ 18.2-90, 18.2-91). "Breaking, as an element of the crime of burglary, may be either actual or constructive." Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357 (1922). Actual breaking involves the application of some force, slight though it may be, whereby the entrance is effecte......