Smith v. State
| Decision Date | 20 July 1920 |
| Citation | 85 So. 911,80 Fla. 315 |
| Parties | SMITH v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, De Soto County; George W. Whitehurst Judge.
Thurman H. Smith was convicted of burglary, and he brings error. Reversed and remanded.
Syllabus by the Court
The term 'dwelling house' in the law of burglary is defined as the apartment, building or cluster of buildings in which a man with his family resides.
Words employed in a statute having acquired a fixed and definite meaning, it will be presumed, in the absence of any definition in the statute, that they were intended to be used in that sense by the Legislature.
In order to uphold a conviction under the statute defining the offense and prescribing the penalty for breaking and entering a dwelling house, it must be alleged and proved that the dwelling house alleged to have been broken and entered was the dwelling house in fact of another at the time of the alleged breaking and entry.
In order that a house may come within the common-law definition of burglary, it must be in fact the dwelling house of another at the time of the breaking and entry; and the same is true under a statute punishing the breaking and entering of a dwelling house. The character of the house is generally immaterial if it is occupied as a dwelling.
Temporary absence of the occupant does not take away from a dwelling house its character as such, but it must be made to appear that such occupant left the house animo revertendi in order to constitute an unlawful breaking and entry of the house during such absence burglary.
COUNSEL W. D. Bell, of Arcadia, for plaintiff in error.
Van C Swearingen, Atty. Gen., and Worth W. Trammell, Asst. Atty Gen., for the State.
The plaintiff in error, hereafter referred to as the defendant, was indicted in the circuit court for De Soto county on a charge of breaking and entering a dwelling house with intent to commit a felony, to wit, grand larceny. Upon a trial of the case there was a verdict of guilty as charged. Motion for a new trial was made and denied. By the sentence imposed the defendant was required to serve a term of one year at hard labor in the state prison. Writ of error was taken from this court to the judgment of the court below imposing this sentence.
The prosecution is under section 3281, General Statutes of 1906, Compiled Laws 1914, denouncing the offense and prescribing the penalty for breaking and entering a dwelling house.
The term 'dwelling house' in the law of burglary is defined in Bishop's Statutory Crimes (3d Ed.) § 278, as 'the apartment, building, or cluster of buildings, in which a man with his family resides.' In Wharton's Criminal Law, § 993, it is said:
'The breaking and entry, to constitute a burglary, must be ordinarily into the dwelling house of another; that is, to say, a house in which the occupier and his family usually reside, or, in other words, dwell and lie in.'
Having obtained a fixed and definite meaning, it will be presumed, in the absence of any definition in the statute, that words employed were intended to be used in that sense by the Legislature. Accordingly, in order to uphold a conviction under the statute, it must be shown that the dwelling house alleged to have been broken and entered was the dwelling house in fact of another at the time of the alleged breaking and entry. 6 Cyc. 185; Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714; State v. Clark, 89 Mo. 423, 1 S.W. 332; Schwabacher v. People, 165 Ill. 618, 46 N.E. 809.
In 6 Cyc. 185, on this subject it is said:
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