State v. Burton

• Decision Date: 06 March 1902
• Citation: 67 P. 1097,27 Wash. 528
• Court: Washington Supreme Court
• Parties: STATE v. BURTON.

67 P. 1097

27 Wash. 528

STATE v. BURTON.

Supreme Court of Washington

March 6, 1902

Appeal from superior court, Pierce county; W. H. Snell, Judge.

Calvin Burton was convicted of burglary, and he appeals. Affirmed.

John Leo and J. P. Cass, for appellant.

Fremont Campbell, Charles O. Bates, and Walter M. Harvey, for the State.

DUNBAR J.

Appellant was convicted in the superior court of Pierce county of the crime of burglary, and was sentenced to imprisonment for a term of 13 years. From said judgment an appeal is taken to this court.

A demurrer was interposed to the information, which was overruled, and the overruling of the demurrer is the first assignment of error presented. The essential part of the information is as follows: 'That the said Calvin Burton in the county of Pierce, in the state of Washington, on or about the 23d day of March, 1901, then and there being unlawfully and feloniously did break and enter in the nighttime the dwelling house of C. A. Murray and Jennie R Murray,--the said dwelling house being then and there rooms numbered 56 and 58 in the Tacoma Hotel, in the city of Tacoma, said county and state,--with the intent then and there to commit a misdemeanor, to wit, petit larceny,' etc. It is contended by the appellant that, inasmuch as ordinarily a hotel is a temporary stopping place for transient guests, it is not their dwelling house; that, to be a lodger's dwelling house, a room in a hotel must be leased for a definite period; and that such leasing, being essential to impart to a hotel room the character of a dwelling house, should be alleged in an information charging the commission of burglary in such room as a dwelling house, and for want of such an allegation in the information in this case the same was fatally defective. We do not think this contention can be sustained. It is true that, at the common law, when a burglary was committed in the room of a transient guest, the ownership was required to be alleged in the hotel keeper; but our statute provides that the unlawful breaking and entering in the nighttime of the dwelling house of another constitutes burglary, and the information charges that the defendant did break and enter in the nighttime the dwelling house of C. A. Murray and Jennie R. Murray. It is true that, in further description of the dwelling house, it is said that it comprised rooms 56 and 58 in the Tacoma Hotel, but this must be held to be entirely descriptive of the dwelling house. It is not necessary that a dwelling house should be under any particular cover, or segregated from any other house. In fact, under the law, both ancient and modern, if the occupants of rooms, even in a house which was used as a hotel, occupied their rooms for any length of time, it was sufficient to allege ownership in the occupants of the rooms. This court sustained an information similar in this respect to the one under discussion in State v. Miller, 3 Wash. St. 131, 28 P. 375. It is said by Bishop, in his work on Criminal Procedure (volume 2 § 137), that the meaning of 'ownership' varies with the offense. Burglary is not a disturbance to the fee as realty, but to the habitable security. Therefore in burglary 'ownership' means any possession which is rightful as against the burglar. Certainly, so far as indicated by the information in this case, the possession of these rooms was rightfully in the Murrays as against the burglar. The demurrer was properly overruled.

The second assignment is to the effect that testimony was admitted tending to show larceny on the part of the alleged burglar, and it is said that only an attempt to commit larceny was charged in the information; that larceny is not, under the larceny laws of this state, an essential ingredient of burglary; that an unlawful entry with an intent to commit any crime constitutes burglary, and the intent is presumed from the entry. Conceding this to be true, the proof offered did not prejudice the case of the defendant, because, if the presumption of larceny attached anyway, he was not wronged by proof of the larceny. In any event, this evidence was competent, as being part of the res gestae. It was competent for the purpose of showing that an entry was made, and the circumstances attending the entry.

The third error is based upon a remark of the court. The defense offered to prove by witness Bailey that, on the occasion and the date set out in the information, the defendant had said to the witness in Seattle that he could not stop there because they wanted to take the Flyer to Tacoma. This testimony was evidently introduced for the purpose of proving an alibi. The court remarked: 'He might have lied to him. The witness may state what he saw and knows. The offer will be overruled, and exception allowed.' The court was undoubtedly right in excluding the testimony, where it was purely hearsay and self-serving; and, while the language used by the court may not have been apt, we do not think it constituted reversible error. The ground of the inadmissibility of such testimony as this is its unreliability, and in fact the...