State v. Bull

• Decision Date: 02 March 1929
• Docket Number: 5282
• Citation: 47 Idaho 336,276 P. 528
• Parties: STATE, Respondent, v. ALEXANDER BULL, Appellant
• Court: Idaho Supreme Court

276 P. 528

47 Idaho 336

STATE, Respondent, v. ALEXANDER BULL, Appellant

No. 5282

Supreme Court of Idaho

March 2, 1929

CRIMINAL LAW-BURGLARY-INFORMATION-SUFFICIENCY OF-IDENTITY OF BUILDING-UNLAWFUL ENTRY-INTENT-PROOF-PRINCIPAL AND ACCESSORIES.

1. Failure of information for burglary to set out ownership of pool-hall burglarized or allege that it was the property of one other than defendant held not fatal defect, ownership of building burglarized being immaterial, except for purpose of permitting greater certainty in its identification and to show that building was entered wrongfully.

2. Information for burglary following, in substance, the language of the statute (C. S., sec. 8400), which defines burglary as entry with intent of committing grand or petit larceny or felony, is sufficient.

3. Entry into poolroom open to public during business hours and through front door, which general public was invited to use constituted "burglary," under C. S., sec. 8400, if defendant or his accomplice made entrance for purpose of committing larceny therein, under C. S., secs. 8093, 8845 invitation to enter for lawful purpose not extending to persons entering for unlawful purposes.

4. Defendant remaining outside building in capacity of lookout was guilty of burglary as principal, under C. S., sec. 8400 if building was entered by accomplice with intention of committing larceny in furtherance of a common purpose to which defendant was a party, though he himself made no entry since distinctions between accessories and principals are abolished by C. S., secs. 8093, 8845.

5. In prosecution for burglary under C. S., sec. 8400, question whether defendant or his accomplice entered pool-hall with intent to commit larceny was for jury.

6. Testimony of owner of stolen property that property was taken without his consent is not indispensable in burglary prosecution, under C. S., sec. 8400, but want of consent may be shown by other circumstances.

7. In prosecution for burglary under C. S., sec. 8400, proof of actual commission of larceny in building is competent evidence of criminal intent of defendant at time of entry.

8. In prosecution for burglary of pool-hall under C. S., sec. 8400, evidence that defendant remained outside acting in capacity of lookout, and that property was stolen from pool-hall, held sufficient to sustain conviction.

APPEAL from the District Court of the Eleventh Judicial District, for Minidoka County. Hon. Hugh A. Baker, Judge.

Appellant was convicted of burglary in the first degree. Affirmed.

Affirmed.

W. W. Mattinson and Barber & Barber, for Appellant.

The information must charge that the building entered was the property of one other than appellant.

"Except in so far as the rule may be changed by statute, an indictment for burglary, whether at common law or under statute, must allege the ownership of the dwelling-house or other building broken and entered, if it is known, or it will be fatally defective; and must do so accurately so that there will be no variance between the allegation and the proof. The fact that the statute defining burglary does not expressly require an allegation as to ownership does not do away with the necessity of such allegation." (9 C. J. 1043, n. 91; 4 R. C. L. 432, 433; State v. James, 194 Mo. 268, 5 Ann. Cas. 1007, 1009, 92 S.W. 679; Beall v. State, 53 Ala. 460; Ward v. State, 50 Ala. 120, and cases cited; Rex v. White, 1 Leach C. C. (Eng.) 552; 1 Wharton's Criminal Law, 9th ed., § 816.)

One of the essential reasons for such requirement is to show that it was not the building of the defendant, but that he was a trespasser. (4 R. C. L. 433.)

To constitute an unlawful entry there must be a trespass; and there is an implied consent to enter a store building open for business. (9 C. J. 1017, 1018, n. 69, 75; State v. Newbegin, 25 Me. 500.)

In the case at bar, unless the record shows a larceny to have been committed, there is no fact in evidence from which an unlawful entry could be inferred. There can be no conviction until the fact that a crime has been committed is first established. (State v. Sullivan, 34 Idaho 68, 17 A. L. R. 902, 199 P. 647.)

The court erred in instructing the jury that an entry for an unlawful purpose will be presumed from an unlawful act done after entry.

"The general rule is that, if it is proved that the accused committed the unlawful act charged, it will be presumed that the act was done with criminal intention, and it is for the accused to rebut this presumption. . . . This rule, however, does no apply in the case of crime like burglary . . . . for which a specific intent is necessary. Here the burden is on the state to prove affirmatively that the act was done with the required specific intent. (9 C. J., sec. 121, p. 1064; sec. 138, p. 1079; sec. 152, pp. 1088, 1089; 16 C. J., sec. 47, p. 80; sec. 48, p. 81.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

An information charging burglary is not fatally defective because it fails to allege ownership of the premises entered. (State v. Wansgaard, 46 Idaho 20, 265 P. 671; People v. Price, 143 Cal. 351, 77 P. 73; People v. Redman, 39 Cal.App. 566, 179 P. 725; People v. Mendoza, 17 Cal.App. 157, 118 P. 964; Stewart v. State, 27 Ariz. 240, 232 P. 556; State v. Mish, 36 Mont. 168, 92 P. 459; State v. Wright, 19 Ore. 258, 24 P. 229.)

In burglary the breaking that was required at common law is no longer an essential element in this state. The entry with intent to commit larceny is the test of the crime. (State v. Sullivan, 34 Idaho 68, 17 A. L. R. 902, 199 P. 647; 1 Nichols' Applied Evidence, p. 909.)

Proof of the larceny tends to show the entry and the intent. (1 Nichols' Applied Evidence, p. 909.)

Keeping watch while a crime is being committed renders the watcher equally guilty with the one committing the act for under statute in this state there is no distinction between principals of the first and second degree. (16 C. J. 133; C. S., sec. 8845.)

GIVENS, J. Budge, C. J., Wm. E. Lee, J., and Hartson, D. J., concur.

OPINION

GIVENS, J.

Appellant was convicted of the crime of burglary in the first degree for his alleged aid as a lookout in the burglarizing of a poolroom in Minidoka.

It is urged that the information was defective, that the evidence is insufficient to sustain the verdict, and that the court erred in its instructions to the jury.

The information did not set out the ownership of the pool-hall nor allege that it was the property of one other than the appellant. The only reasons for requiring such allegations are to permit greater certainty in the identification of the building entered and to show that the building entered was entered wrongfully. (State v. Wilson, 36 S.D. 416, 155 N.W. 186.) The identity of the building is a necessary preliminary to any showing of a crime but its ownership, as such, is immaterial. (State v. Wansgaard, 46 Idaho 20, 265 P. 671; People v. Redman, 39 Cal.App. 566, 179 P. 725; People v. Mendoza, 17 Cal.App. 157, 118 P. 964; Stewart v. State, 27 Ariz. 240, 232 P. 556; State v. Mish, 36 Mont. 168, 122 Am. St. 343, 92 P. 459.)

The statute, in effect, defines burglary as an entry with the intent of committing grand or petit larceny or a felony. (C. S., sec. 8400.) The information following, in substance, the statute was sufficient. (State v. George, 44 Idaho 173, 258 P. 551; State v. Bowman, 40 Idaho 470, 235 P. 577; State v. Lundhigh, 30 Idaho 365, 164 P. 690.)

It appears from the record that the alleged burglary took place during business hours, while the poolroom was open to the public, and that the entry was made through the front door which the general public had been invited to use. With reference to these facts, appellant urges that the evidence is insufficient to sustain the verdict in that it does not appear that an unlawful entry was made.

An invitation to enter for a lawful purpose is not an invitation to enter for an unlawful purpose. In McCreary v. State, 25 Ariz. 1, 212 P. 336, the supreme court of Arizona, discussing this question, quoted from a decision of the supreme court of California in People v. Barry, 94 Cal. 481, 29 P. 1026, as follows:

"A party who enters with the intention to commit a felony enters without an invitation. He is not one of the public invited, nor is he entitled to enter. Such a party could be refused admission at the threshold, or ejected from the premises after the entry was accomplished."

In the later case of People v. Descheneau, 51 Cal.App. 437, 197 P. 126, it was said:

"One may, during business hours when a store is open to the public, enter therein with a view to purchasing goods, and if, after he enters, he concludes to steal, such act would constitute larceny only; but if when he entered he intended to commit larceny, his act, under the statute of this state, constitutes burglary, even though the proprietor of the store, having knowledge of his purpose in entering, does nothing to prevent it."

This position was reiterated in People v. Brittain, 142 Cal. 8, 100 Am. St. 95, 75 P. 314; People v. Ferns 27 Cal.App. 285, 149 P. 802; see, also, ...