Finch v. Commonwealth

• Decision Date: 27 January 1858
• Citation: 55 Va. 643
• Parties: FINCH v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

55 Va. 643

FINCH v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 27, 1858

1. An entry into a dwelling-house in the day time, through a door that was so closed that it came within the casing, and to open which required some degree of force, constitutes in law a breaking; though there was no fastening of any other kind on the door.

2. The word " break," in the Code, ch. 192, § 12, p. 728 is borrowed from the law in regard to burglary, and is to be understood as it would be when used in a charge of burglary.

3. A prisoner convicted of a felony, and obtaining a writ of error to the Court of appeals, where the judgment is affirmed, is not responsible for the fees of the clerk or the attorney general. See Code, ch. 211, § 10, 11, p. 782.

Allen Finch was indicted in the Circuit court of Pittsylvania county for a felony. The first count charged that he did feloniously break and enter, in the day time, the store-house of Yancey W. Ingram, adjoining and occupied with the dwelling-house of said Ingram, with intent to commit a larceny. The second count charged that he broke and entered into the dwelling-house of said Ingram, in the day time, with the same intent.

On the trial there were questions whether the prisoner was examined for the fact stated in the second count; and as to the competency of one of the jurors; but these were waived by the counsel for the prisoner in this court. The only question made in this court is, Whether there was in contemplation of law, a breaking into the premises? On that point the judge below instructed the jury, that if from the evidence they should believe that an entry was effected by the prisoner through a door which was open or partially open, that this was in law no breaking. But if they should believe from the evidence, that an entry was effected by the prisoner through a door that was so closed that it came within the casing of the door, and to open which required some degree of force that this constituted in law a breaking, though there was no fastening of any other kind on said door. To this instruction the prisoner excepted.

The jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at one year; and there was a judgment accordingly. And the prisoner asked for a new trial which was refused; and at his instance the facts proved were stated on the record. Upon these facts the only question was as to the breaking. It appeared that the door through which the prisoner entered the house was a common batten door; and that it had at the time of said entry no lock, latch or fastening other than as follows: That in dry weather it fitted closely into the casing when pulled to. That it opened on the inside of the house. That there was on the inside of the door a small knob by which it was sometimes pulled open. That in any weather it required some exertion to pull it open by said knob. That the door when pulled to in any weather might be blown open by wind, but it would require a strong wind to blow it open. That on the day when the prisoner entered, the weather was warm and dry, and no wind was blowing. It was proved that the prisoner entered by this door, which was shut until he opened it; and he was found in the house kneeling at a desk, and trying with Ingram's bunch of keys to open a drawer of said desk, in which Ingram kept money. The prisoner lived in the neighborhood and had been frequently in the store. On the application of the prisoner, a supersedeas to the judgment was awarded.

Barksdale, for the prisoner.

The Attorney General, for the commonwealth.

SAMUELS J.

The counsel for the plaintiff in the...