Smith v. First Judicial Dist. Court In and For Churchill County, 4255
Decision Date | 14 December 1959 |
Docket Number | No. 4255,4255 |
Citation | 75 Nev. 526,79 A.L.R.2d 283,347 P.2d 526 |
Parties | , 79 A.L.R.2d 283 Rayland SMITH, Petitioner, v. FIRST JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR The COUNTY OF CHURCHILL, and Honorable Richard R. Hanna, Presiding Judge, Respondents. |
Court | Nevada Supreme Court |
Diehl & Recanzone, Fallon, for petitioner.
Raymond B. Free, Dist. Atty., Churchill County, Fallon, for respondent.
Petitioner seeks a writ of prohibition to prohibit the respondent court and judge from trying him on a charge of first degree burglary. We agree with his contention that the act charged in the information is not within the statutory definition of the felony.
N.R.S. 205.060 defines burglary as follows: 'Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or housetrailer, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary.' The statute then defines burglary of the first degree as that committed in the nighttime, and fixes the punishment as imprisonment for not less than one nor more than 15 years.
N.R.S. 193.010, subd. 8 gives the following definition: "Enter,' when constituting an element or part of a crime, shall include the entrance of the offender, or the insertion of any part of his body, * * *.'
The information charged that the defendant did 'wilfully, intentionally, feloniously, and burglariously, enter, in the night time, the open portion of a certain motor vehicle, to wit: a 1956 Ford pickup * * * with the intent then and there to commit larceny.' It is conceded by respondents that their construction of the language used in the information, 'the open portion of a * * * pickup,' would include a platform body.
If the intention of the legislature is in doubt as to defining as burglary the defendant's act as charged in the information, the legislative act must be strictly construed. Ex parte Todd, 46 Nev. 214, 210 P. 131; Ex parte Smith, 33 Nev. 466, 111 P. 930.
Under a similar statute making the entry of a railroad car burglary, a defendant was charged in the State of Washington with entering a railroad flatcar loaded with sacks of wheat entirely covered by a heavy canvas tarpaulin securely fastened at the sides and ends of the car to form a roof and sides. The Supreme Court of Washington affirmed the lower court's order sustaining a demurrer to the information. State v. Petit, 32 Wash. 129, 72 P. 1021, 1022. The court first defined the question presented to it as: '[I]s the car * * * described in the information a railroad car, such as was within legislative contemplation * * *?' In precisely the same manner the question before us is: Is the open portion of a pickup (which may even include a platform body) within the statutory contemplation of a 'vehicle.' The Washington court said:
The court explained this conclusion as follows: ...
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