State Of West Va. v. Neff., 9105
| Decision Date | 15 October 1940 |
| Docket Number | No. 9105,9105 |
| Citation | 122 W.Va. 549 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia v. Lundy Neff et al. |
Burglary
An outhouse subject to burglary under Code, 61-3-11, must be a house within the ordinary meaning of the word and must adjoin the dwelling house of its owner or be occupied in connection therewith.
Error to Circuit Court, Nicholas County. Lundy Neff and another were convicted of burglary, and they bring error.
Reversed and remanded.
C. R. Swmmerfield, G. G. Duff and W. G. Brown, for plaintiffs in error.
Clarence W. Meadows, Attorney General and Kenneth E. Hines, Assistant Attorney General, for defendant in error.
The two Neffs were charged with burglariously breaking and entering in the night time a chicken house, an outhouse adjoining the dwelling house of J. A. Trent and belonging to him, and stealing from the chicken house his chickens valued at $30.00. The Neffs were found guilty of burglary and sentenced to the penitentiary.
The evidence is incomplete as to the size of the alleged chicken house and its proximity to the Trent dwelling. The former is described as a "small house", having a floor space of four and a half by five feet; but neither its height, nor evidence from which the height might be estimated, is shown. It had a hinged door fastened by a chain drawn through holes bored in the door and "the building face", respectively. The dwelling "sets back about" seventy-five feet from a public road; the chicken house is "out across" the road somewhere, but its distance from the road or the dwelling is not shown.
At common law burglary was "an offense against the habitation not against the property." 9 C. J. 1009. But burglary could be committed on uninhabited structures, provided they were "parcel of" and within the same common fence as the mansion-house, though not contiguous to it. IV Blackstone 225; Armour v. State, 3 Humph. (Tenn.) 379, 385-388. The Virginia Assembly, Acts 1847-8, Ch. IV, Sec. 13, modified the common law by restricting the burglary of a building other than the dwelling house to "an outhouse adjoining thereto and occupied therewith." That restriction remained in the Virginia statute until this state was formed and then we adopted it. West Virginia Acts, 1882, Ch. 148, Sec. 11, substituted the alternative "or" for the connective "and", so that the phrase read "outhouse adjoining thereto (the dwellinghouse) or occupied therewith." There has been no further change. See Code, 61-3-11.
All the words in the phrase are plain and well understood. No reason appears for not holding that they are used in their ordinary sense....
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