Sloan v. People

Decision Date02 December 1918
Docket Number9384.
Citation65 Colo. 456,176 P. 481
CourtColorado Supreme Court

Department 3.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

George Sloan, alias George Carroll, was convicted of burglary, and brings error. Affirmed.

Joel E Stone, of Denver (William H. Gabbert, of Denver, of counsel) for plaintiff in error.

Leslie E. Hubbard, Atty. Gen., and Charles Roach, Deputy Atty. Gen (J. W. Kelley, of Denver, of counsel), for the People.


The plaintiff in error was convicted of the crime of burglary of a dwelling house. It is contended by his counsel that there is a fatal variance between the allegation in the information and the proof adduced at the trial with respect to the ownership of the house. This contention arises from, and is based upon, the following facts: The information describes the building burglarized as 'the dwelling house of W. W. Watson.' The evidence was that at the time of the alleged offense the 'owner,' meaning the person having the fee title to the premises, was one Charles C. Harrison, a nonresident. The house was unoccupied, but was in the possession, management, and control of W. W. Watson, whose name is used in the information as that of the owner. Watson was the agent of Harrison in the sale, renting, and care of the building.

The trial court held that under the foregoing facts the ownership of the dwelling house was properly laid, in the information, in Watson, and that therefore there was no variance between the ownership pleaded and proven. The correctness of this ruling presents the first question for our determination.

Under our statute, burglary includes the breaking and entering into of unoccupied as well as of occupied dwelling houses, thus making it an offense against property and not merely against the habitation. 9 C.J. 1009. Allegations as to ownership in burglary cases might, on this account, be placed on the same footing as such averments in charges of larceny. In an information charging larceny the ownership of the goods stolen may be laid in the person in whose possession the property was at the time of the theft, although such person is merely an agent and not the real owner. 17 R.C.L. 61, § 66. The reason for such rule in larceny cases is thus stated in 25 Cyc. 89:

'The actual condition of the legal title is immateral to the thief; so far as he is concerned, one may be taken as the owner who was in peaceable possession of it, and whose possession was unlawfully disturbed by the taking.'

Practically in the same language could be stated a reason for applying the same rule to averments of ownership in an information charging burglary. In Maxwell's Criminal Procedure, 104, 105, the author says:

'The object is to describe the place where the offense was committed, not to determine the ownership of the property. Ownership as against the burglar means any possession which is rightful.'

From the foregoing it would seem to follow that the possession which is equivalent to ownership for the purpose of proving the offense in this class of cases need not be a possession coupled with actual occupancy, as a dwelling or otherwise, of the burglarized premises. The authorities are not inconsistent with this view. In 2 Enc. of Evidence, 815, it is said:

'Proof that one was in actual or constructive possession of the burglarized premises is sufficient to establish his alleged ownership.'

This expression is in complete accord with the text in 3 Bishop's New Crim. Proc. § 137, where the author says that ownership in burglary means 'any possession which is rightful as against the burglar.'

There are numerous cases where the ownership was held properly laid, in indictments or informations for burglary, in the person who was in the possession and occupancy of the burglarized dwelling. 9 C.J. 1044. But it does not follow from such decisions that occupancy is essential to constitute possession within the meaning of the rule laid down by Bishop. In Hahn v. State, 60 Neb. 487, 83 N.W. 674, the ownership was laid in one who had charge of the building on behalf of nonresident owners. The court said:

'The person living in, and having general charge and control of, the building was the owner thereof in contemplation of law,

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13 cases
  • People v. Fuentes
    • United States
    • Colorado Court of Appeals
    • 20 Enero 2011
    ...the supreme court to declare that burglary is “an offense against property and not merely against the habitation.” Sloan v. People, 65 Colo. 456, 457, 176 P. 481, 482 (1918). In fact, the supreme court has recognized that common law burglary has “few elements in common” with burglary under ......
  • People v. Morales
    • United States
    • Colorado Court of Appeals
    • 5 Enero 2012
    ...have consistently declared that burglary is “an offense against property and not merely against the habitation.”Sloan v. People, 65 Colo. 456, 457, 176 P. 481, 482 (1918); see Cooper, 973 P.2d at 1238;Fuentes, 258 P.3d at 324. ¶ 66 The supreme court has interpreted the meaning of the term “......
  • People v. Johnson
    • United States
    • Colorado Supreme Court
    • 14 Noviembre 1995
    ...People v. Barefield, 804 P.2d 1342, 1345 (Colo.App.1990), cert. denied, No. 90SC696 (Colo. Jan. 28, 1991); see also Sloan v. People, 65 Colo. 456, 176 P. 481 (1918); Howard v. People, 62 Colo. 131, 160 P. 1060 (1916). Consequently, Mr. Johnson's purported ownership interest in Ms. Johnson's......
  • People v. Barefield
    • United States
    • Colorado Court of Appeals
    • 6 Septiembre 1990
    ...v. Germany, 41 Colo.App. 304, 586 P.2d 1006 (1978), rev'd on other grounds, 198 Colo. 337, 599 P.2d 904 (1979). In Sloan v. People, 65 Colo. 456, 176 P. 481 (1918), the court held that any rightful possession of a premises creates a sufficient "ownership" or possessory interest in the prope......
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