Sheehan v. State

• Decision Date: 18 September 1946
• Docket Number: A-10621.
• Parties: SHEEHAN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

172 P.2d 809

83 Okla.Crim. 41

SHEEHAN v. STATE.

No. A-10621.

Court of Criminal Appeals of Oklahoma

Sept 18, 1946

Appeal from District Court, Stephens County; Cham Jones, Judge.

Lloyd Sheehan was convicted of burglary in the second degree, and he appeals.

Judgment affirmed.

Syllabus by the Court.

1. Under the statute (21 O.S.1941 § 1435) a person is guilty of burglary in the second degree who breaks and enters a building in which property is kept with intent (a) to steal therein or (b) to commit any felony.

2. At common law stealing and larceny were synonymous terms, but by statute (21 O.S.1941 § 1701) larceny is given a broader meaning than stealing.

3. Information charging defendant with breaking and entering a building 'with the unlawful and burglarious intent to commit the crime of larceny therein' followed by a statement of the acts committed by defendant is sufficient to state the offense of burglary in the second degree.

4. The offense of burglary is complete when the building is broken into and entered with specific intent to steal, and the actual stealing is but evidence of such intent.

5. It was not necessary for the information to allege the value of articles taken from building in a charge of burglary in the second degree.

6. Before Criminal Court of Appeals will interfere with verdict of jury on ground that evidence was insufficient to sustain conviction, there must be no competent evidence in the record upon which the verdict could be based.

7. Instructions of the court should be applicable to evidence and all proper deductions and interpretations thereof, and not to questions not presented or covered by evidence.

8. If counsel for defendant are of the opinion that additional instructions should be given to jury, it is their duty to reduce them to writing, submit them to the trial judge and request that they be given. If they fail to do this, a conviction will not be reversed unless Criminal Court of Appeals is of the opinion in the light of the entire record including instructions which were given, that by the failure of the trial court to instruct the jury upon some material question of law, the defendant has been deprived of a substantial right.

9. Evidence was sufficient to sustain conviction for burglary in the second degree.

Miskovsky & Miskovsky, of Oklahoma City, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.

JONES Presiding Judge.

Lloyd Sheehan was charged by information filed in the District Court of Stephens County jointly with R. D. Mooneyhan, David Jones and Elmer Petty with the crime of burglary in the second degree; a severance was granted, the defendant Sheehan was tried, found guilty and sentenced to serve the minimum term of two years imprisonment in the state penitentiary and has appealed.

We have heretofore affirmed the sentence which was given the codefendant, David Jones. Jones v. State, Okl.Cr., 161 P.2d 89.

Counsel for defendant present the proposition that the information is defective in that it does not charge the unlawful and felonious intent required for burglary in the second degree.

The information in this case charged a violation of the provisions of 21 O.S.1941 § 1435, which reads: 'Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.'

Counsel for defendant, in support of this proposition, state that the intent required in the statute is either (a) with intent to steal therein, or (b) with intent to commit any felony. It is then pointed out that the information charged the defendant Sheehan and his codefendants with breaking and entering the building in question with the unlawful intent 'to commit the crime of larceny therein'; that the crime of larceny is a much broader term than the word 'steal'. The the charge of burglary in the second degree must be based upon the common-law crime of stealing or upon the statutory felony of grand larceny, and that where the crime of larceny is alleged to be committed, the failure to state the value of the goods taken so as to show grand larceny renders the information fatally defective, citing Sullivan v. State, 7 Okl.Cr. 307, 123 P. 569.

Any trespass involving the taking of personal property, accompanied with an intent to deprive another thereof, is larceny; but stealing requires a felonious intent on the part of the taker to deprive the owner thereof and to convert the same to the taker's own use, specific proof of which is not necessary to support a conviction under the general larceny statute. Crowell v. State, 6 Okl.Cr. 148, 117 P. 883, cited in Sullivan v. State, supra.

In Sullivan v. State, supra [7 Okl.Cr. 307, 123 P. 507], it is further said: ' In Hughes v. Territory, 3 Okl. 28, 56 P. 708, the Supreme Court of Oklahoma Territory says: 'The Legislature has modified the meaning of the word 'larceny,' as used in the crimes act, so that the taking of personal property, accomplished by fraud or stealth, and with intent to deprive another thereof, is larceny, regardless of whether or not it was taken for the purpose of depriving the owner thereof, or for the purpose of converting it to the use of the taker. Therefore, while stealing and larceny at common law were synonymous terms, our statute has given to the word 'larceny' a much broader meaning than it them had; while 'steal' or 'stealing' has not been defined by our statutes, and must be construed according to its common-law meaning.' There has been no amendment to the statute since this opinion.'

That part of the information to which this attack is directed reads: '* * * with the unlawful, felonious and burglarious intent then and there on the part of them, the said R. D. Mooneyhan, David Jones, Lloyd Sheehan and Elmer Petty, to commit the crime of larceny therein, to-wit: With the unlawful and felonious intent to stealthily take, steal and carry away without the knowledge or consent and against the will of the said R. E. McCaw, manager or any agent of said corporation, the personal property therein contained and the said defendants did take, steal and carry away six (6) cases of beer under the control of the said Ice Service Company, a corporation and the said R. E. McCaw, manager, with the unlawful intent to deprive the said Ice Service Company, a corporation, of the said property and to convert the same to the use and benefit of them, the said R. D. Mooneyhan, David Jones, Lloyd Sheehan and Elmer Petty, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state of Oklahoma.'

At the time the defendant was arraigned in District Court, a demurrer was interposed to the information which properly raised the issue which is now presented in defendant's brief.

A study of the information shows that, although it alleges that defendant had the intent to commit larceny in the building, it proceeded to say that the defendant had the 'unlawful and felonious intent to take, steal, and carry away without the knowledge or consent and against the will' of the owner certain personal property '* * * with the unlawful intent to deprive the said company of said property and convert the same to their own use and benefit.'

The allegations in the latter part of said information are sufficient to comply with the rules set forth in Sullivan v. State, supra, and the other cases relied upon by defendant.

In addition to what we have hereinabove said, it is well to point out that the rule adopted in Sullivan v. State was later modified by this court in Wilson v. State, 50 Okl.Cr. 310, 297 P. 826, and Hames v. State, 54 Okl.Cr. 341, 20 P.2d 915, wherein it was held: 'An indictment which charges a breaking and entering with intent to commit larceny is sufficient.'

The second proposition presented in defendant's brief is that 'no proof of the value of the beer having been offered, the evidence is insufficient to support the verdict.' This contention is based on the argument presented in support of their first proposition hereinabove discussed, to-wit: that the information should either allege the intent to steal or the intent to commit grand larceny, in which latter case the value of the goods taken should be set forth in the information.

In view of the fact that we have held against the contention of the defendant in connection with his first assignment of error, the same ruling will dispose of this proposition. Attention is further directed to the fact that it is not necessary in the crime of burglary to actually take any property. The offense is complete when the building is broken into and entered with specific intent to steal, and the actual stealing is but evidence of such intent. The intent to steal may be established by circumstantial evidence. The taking of the property was not a necessary ingredient of the offense charged. Wilson v. State, supra. It was not necessary then for the information to allege the value of the articles taken, and the proof of the state did not need to show such value.

It is next insisted that the evidence is wholly insufficient to sustain the conviction. The defendants were charged with breaking and entering a building of the Ice Service Company in the city of Duncan with the intent to steal certain cases of beer which were stored in the building.

R. E McCaw testified that he was the general manager of the Ice Service Company; that the company was engaged in the wholesale beer distributing business in Duncan and vicinity. They had several cas...