State v. Allen

• Decision Date: 19 October 1933
• Docket Number: 6041
• Citation: 53 Idaho 603,26 P.2d 177
• Parties: STATE, Respondent, v. FRANK ALLEN, E. C. BALDWIN, and CLAUDE BEASLEY, Appellants
• Court: Idaho Supreme Court

26 P.2d 177

53 Idaho 603

STATE, Respondent, v. FRANK ALLEN, E. C. BALDWIN, and CLAUDE BEASLEY, Appellants

No. 6041

Supreme Court of Idaho

October 19, 1933

CRIMINAL LAW-BURGLARY-EVIDENCE.

1. Evidence must prove affirmatively and beyond reasonable doubt that there was breaking and entry to warrant conviction for burglary (I. C. A., secs. 17-3401, 17-3402).

2. Evidence leaving it wholly to conjecture regarding manner of entry, if any, and regarding whether shed torn down was actually entered, held insufficient to prove burglary (I. C A., sec. 17-3401).

3. Act of tearing down and hauling shed away did not constitute "burglary," in absence of proof of entry with intent to commit larceny or felony (I. C. A., sec. 17-3401).

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Guy Stevens, Judge.

Frank Allen and Claude Beasley were convicted of second degree burglary, and appeal. Reversed and remanded, with instructions to enter judgment exoneretur, discharge the appellants and dismiss the action.

Reversed and remanded, with instructions.

L. R Thomas and J. E. Good, for Appellants.

Burglary cannot be committed of an empty barn. (Sec. 17-3401, I. C. A.; People v. Williams, 35 Cal. 671; Langston v State, 96 Ala. 44, 11 So. 334)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

Even if it were the fact that the building involved was empty, such is no defense to a charge of burglary. (9 C. J. 1032; Schultz v. State, 88 Neb. 613, 130 N.W. 105, 34 L. R. A., N. S., 243; People v. Shaber, 32 Cal. 36.)

HOLDEN, J. Budge, C. J., and Givens, Morgan and Wernette, JJ., concur.

OPINION

HOLDEN, J.

Terrell S. Rich was the owner of a lumber shed located on the desert near the Fort Hall Indian Reservation in Bingham county. Some time between the first part of December, 1932, and the first part of January, 1933, the shed was torn down and hauled away. When torn down, according to the testimony of the owner and complaining witness, the shed was empty and contained no personal property, goods or chattels. Thereafter a criminal complaint was filed in the probate court of Bingham county charging the appellants and one E. C. Baldwin with the crime of burglary. A preliminary examination followed and appellants and Baldwin were held to answer that charge in the district court for Bingham county.

May 1, 1933, an information was filed, the charging part of which reads as follows:

"The said Frank Allen, E. C. Baldwin, and Claude Beasley on or about the 4th day of January, 1933, at the County of Bingham and the state of Idaho, and prior to the filing of this information did then and there willfully, unlawfully, and feloniously break and enter a certain barn or building belonging to Terrell S. Rich with intent then and there willfully, unlawfully, and feloniously to commit larceny therein."

Upon the trial Baldwin was acquitted and Allen and Beasley were convicted of second degree burglary and appeal.

Section 17-3401, I. C. A., 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, or railroad car, with intent to commit grand or petit larceny or any felony, is guilty of burglary."

Section 17-3402, I. C. A., defines the degrees of burglary as follows:

"Every burglary committed in the night-time is burglary of the first degree, and every burglary...