James v. United States, 14814.
| Decision Date | 26 November 1956 |
| Docket Number | No. 14814.,14814. |
| Citation | 238 F.2d 681,16 Alaska 513 |
| Parties | George Ralph JAMES, Jr., Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bertram Edises, Oakland, Cal., for appellant.
George M. Yeager, U. S. Atty., Fairbanks, Alaska, for appellee.
Before HEALY, LEMMON, and FEE, Circuit Judges.
Appellant was convicted on a charge of feloniously breaking and entering a dwelling house in the night time with intent to commit larceny therein, and was sentenced to imprisonment for a term of 18 months. He seeks reversal on the ground that the structure he was charged with entering was not shown to be a "dwelling house" within the meaning of the Alaska law.
The offense of burglary is dealt with in Article 3 of Chapter 5 of the Alaska Criminal Code. The Article contains five sections, numbered § 65-5-31 to § 65-5-35, inclusive. The section under which the indictment here was laid is § 65-5-31, denominated "Burglary in dwelling house." This section we set out in full on the margin.1
The term "dwelling house" is defined in § 65-5-35 of the Article as follows: Emphasis supplied.
Another section of the Article, denominated § 65-5-32, bears the title "Burglary not in dwelling house." It reads in pertinent part: "That if any person shall break and enter any building within the curtilage of any dwelling house, but not forming a part thereof, or shall break and enter any building or part thereof, * * * or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony therein, such person shall be deemed guilty of burglary, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than two nor more than five years."
From the testimony introduced the jury were entitled to conclude that appellant, without permission of the owner, forcibly entered an unoccupied house in Fairbanks, Alaska on the night of December 21, 1954, and carried several parkas from a back room to an open storm porch adjoining the house with intent to appropriate the parkas to himself. He was apprehended on the storm porch by the owner of the house and a friend who, having noticed a light flashing therein, had notified the owner.
The evidence shows without contradiction that the house had been vacant for more than a year prior to the entry. The owner, who lived not far from the place, had acquired the structure in 1952, but apparently had never lived in it himself. The parkas above mentioned were his property. Asked whether he had rented the house or whether anybody was staying in it, he answered, "No." Asked when it had last been lived in, he replied: "Oh it has been about 15 months ago now since anyone lived in it, better than a year anyway." There was no showing whatever that the former occupant, on quitting the premises, had entertained any intention of returning. The contrary, indeed, is conceded by the government to be the case.
Appellant's position is that on this state of the proof he was not shown to have committed the crime with which he was charged, namely burglary in a dwelling house as the latter term is defined in the territorial statute, § 65-5-35, supra. We see no escaping this contention. The statutory phrase, "any part of which has usually been occupied by any person lodging therein," in substance derives from the common law. Scott v. State, 62 Miss. 781, 782. For the house in question to have been "usually occupied by any person lodging therein," there must have been the equivalent of a current occupancy or the last occupant must have left animo revertendi. Carrier v. State, 227 Ind. 726, 89 N.E.2d 74, 76; Haynes v. State, 180 Miss. 291, 177 So. 360; Smith v. State, 80 Fla. 315...
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