Goins v. State

• Decision Date: 21 April 1914
• Docket Number: 14423
• Citation: 107 N.E. 335,90 Ohio St. 176
• Parties: Goins Et Al v. The State Of Ohio
• Court: Ohio Supreme Court

107 N.E. 335

90 Ohio St. 176

Goins Et Al v. The State Of Ohio

14423

Supreme Court of Ohio

April 21, 1914

Criminal law - Burglary - Any force used constitutes forcible breaking, when - Section 12438, General Code. Where any force, however slight, is required to effect an entrance into a building through a doorway partly open such act constitutes a forcible breaking under Section 12438, General Code.

At the January term, 1913, of the court of common pleas of Clinton county plaintiffs in error were indicted under Section 12438 General Code, for maliciously and forcibly breaking and entering in the night season a certain building namely, a certain chicken house, the property of one Mary Linton, and stealing therefrom chickens of the value of $15 the property of said Mary Linton. A trial to a jury was had and plaintiffs in error were found guilty as charged in the indictment. A motion for a new trial was overruled, sentence pronounced and judgment entered. This judgment Was affirmed by the court of appeals, and plaintiffs in error here seek a reversal of the judgment below and ask for their discharge.

Messrs. Hayes & Hayes, for plaintiffs in error.

Mr. Joe T. Doan, prosecuting attorney, for defendant in error.

NEWMAN J.

The only means of ingress to and egress from the chicken house was through a doorway of ordinary size. on the evening before the chickens were stolen the door of the chicken house, which was hung upon hinges, was open about fifteen or eighteen inches, being held open by means of a fence post placed on one side thereof and a brick on the other side. The owner of the property, Mary Linton, testified that the door had been propped open in that way just so that the chickens and myself could pass in and out." She stated that the door was not open wide enough to permit her to walk in she "had to take hold of the edge of the door and then pull around the corner." It appears from the evidence that the morning after the chickens were stolen the door was from one-half to two-thirds open and the fence post and brick Were moved out of place.

That chicken house was entered by plaintiffs in error and chickens of the value of $15 were stolen by them is not controverted. Counsel insist, however, that the crime of burglary Was not established, that there was no evidence tending to show that there Was a forcible breaking and entering of the chicken house and that the court erred in refusing to give to the jury two certain special instructions requested by them to be given before argument. These instructions are as follows:

"If the jury find from the evidence that the building charged in the indictment to have been forcibly; feloniously and burglariously broken and entered was a chicken house and if the mode of ingress to and egress from was through a common sized door hung upon hinges and that the said door was so adjusted that it was left open or partly open so that the owner and the chickens could pass in and out, and you further find that said door was in that condition at the time when it is claimed that it Was broken and entered as charged in the indictment, then I charge you that your verdict should be not guilty of breaking and entering said building."

"If the jury find from the evidence that the building in question was a chicken house and if the mode of ingress to and egress from said chicken house was through a common sized door, hung upon hinges and a brick or piece of brick was so placed between the sill of said building and said door, so as to leave said door open for a space of from fifteen to eighteen inches, and that upon the outside of said door there was placed upon the ground a piece of fence post to prevent the door from swinging wide open and that through the space thus left the owner could pass into and from said building and that said door was in that condition at the time it is charged it was broken and entered then I charge you that your verdict must be not guilty of breaking and entering said building."

The objection to these instructions is that there is an assumption that the door was open sufficiently wide that any person night pass in and out of the chicken house. This was a question for the jury, and in view of the fact that the fence post and brick were moved and the door was found to...