Howard v. State
| Decision Date | 11 May 1909 |
| Citation | 121 N.W. 133,139 Wis. 529 |
| Parties | HOWARD v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, La Crosse County; J. J. Fruit, Judge.
James Howard was convicted of burglary, and he brings error. Reversed and remanded.
This action is before this court on a writ of error to review the judgment of the circuit court which sentenced the plaintiff in error to imprisonment at the state prison for the term of six years, he having been found guilty of “willfully, feloniously, and burglariously” breaking and entering “in the nighttime of a certain day a certain building and schoolhouse, not adjoining with nor occupied as a dwelling house, * * * the joint property of joint school district No. 10 of the towns of Hamilton and Farmington, * * * with intent the goods and chattels of one Earl McIntosh then and there being found feloniously to take, steal, and carry away.” The jury also found that the plaintiff in error previous to the commission of the burglary had been convicted and sentenced for three crimes, twice for burglary and once for grand larceny, and that such sentences remained of record unreversed. After the jury had been sworn, they retired under the court's direction, and the defendant admitted in open court the former convictions and sentences as charged in the information, and that the same were unreversed, and objected to the introduction of evidence on these charges. The objection was overruled, and the state was permitted to introduce in detail evidence of the prior offenses, and also evidence of defendant's prison record under such sentences.Morris & Hartwell, for plaintiff in error.
F. L. Gilbert, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Otto Bosshard, Dist. Atty., for the State.
SIEBECKER, J. (after stating the facts as above).
The information charges that the plaintiff in error burglariously broke and entered a schoolhouse in the nighttime with intent to steal the property then therein. It is urged that the alleged charge does not constitute an offense within the criminal law of this state. It is manifest that the information attempts to charge an offense under section 4409, St. 1898. Originally this statute was embodied in Rev. St. 1849, c. 134, § 11, which made it an offense to “break and enter in the nighttime any office, shop or warehouse not adjoining to or occupied with a dwelling house, * * * with intent to commit the crime of murder, rape, robbery, larceny or any other felony.” This continued to be the law until 1878, when it was amended by inserting the words “or any other building” after the word “warehouse.” Do the words so added by amendment include all buildings or are they restricted in their scope? It is evident that sections 4407-4411, St. 1898, inclusive, are an enumeration of the instances which constitute the statutory crime of burglary. They nowhere specifically indicate that it was intended that the breaking and entering of a schoolhouse or any other building devoted to public uses with intent to commit any of the offenses specified in section 4409, St. 1898, should be a burglary. The statute must be interpreted in view of the nature of the offense. Burglary at common law was an offense against the habitation, and not against property, and was confined to dwellings. In recent times the offense has been extended to include breaking and entering of shops, warehouses, and other premises, thereby making it an offense against property also. The offense as extended now includes structures and premises a breaking and entry into which constitutes an offense, not only against habitation, but also against the ownership of private property. The history of section 4409, St. 1898, supports the idea that the offense created thereby was to include the elements of an offense against property as well as against habitation. The offense was not generally predicated of structures and premises devoted to public uses, nor are the features of the offense such that from its nature it necessarily includes a breaking and an entering of such structures and premises. The legislation on the subject indicates that in this state the crime of burglary as defined thereby was not intended to embrace a breaking and an entry into buildings devoted to public uses. Nowhere are such buildings specifically designated within these statutes, while section 4412 of the criminal law specifically provides a penalty for breaking,...
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City of Eau Claire v. Booth
...the court had no jurisdiction to proceed to judgment,” citing Article I, Section 7 of the Wisconsin Constitution); State v. Howard, 139 Wis. 529, 534, 121 N.W. 133 (1909) (holding that when the facts do not fall within the statutory offense charged, the sentence and judgment of conviction m......
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State v. Wimmer
...calls for and demands a severer punishment than should be inflicted upon the person guilty of a first crime." Howard v. State, 139 Wis. 529, 532, 121 N.W. 133, 135 (1909) (quoting Ingalls v. State, 48 Wis. 647, 658, 4 N.W. 785, 794 (1880)). More recently, our courts have also justified the ......
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State v. Meyer
...followed by the trial courts and which are consistent with the ruling of Judge Risjord in this case. In the case of Howard v. State, 139 Wis. 529, 533, 121 N.W. 133, 135, it was held that where the defendant admitted the truth of the allegations concerning the previous conviction, it is err......
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State v. Watkins
...471, 220 N.W. 650; State v. Miller (1941), 239 Wis. 334, 1 N.W.2d 178; State v. Sullivan (1942), 241 Wis. 276, 5 N.W.2d 798.13 (1909), 139 Wis. 529, 121 N.W. 133. See also, Meyers v. State (1927), 193 Wis. 126, 213 N.W. 645; Brozosky v. State (1928), 197 Wis. 446, 222 N.W. 311; State v. Ada......