State v. Crawford
| Decision Date | 07 October 1899 |
| Docket Number | 6731 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
John Crawford was indicted for burglary in the third degree and acquitted by direction of the Court, and the state appeals.
Reversed.
Fred B Morrill, state's attorney, (Edward Engerud of counsel) for appellants.
The appeal in this case is by the state pursuant to Subd. 5 § 8329, Rev. Codes. The boring of holes into a granary and thereby extracting grain therefrom is such a breaking and entering of the building as to constitute burglary. 2 Bish New. Cr. L. § 92, Subd. 2 and 3; 2 Whart. Cr. L. § 1549, 1550. In England it was held that the sending of a child of tender years into a building to take property, was sufficient entry to constitute burglary by the person directing the deed. The point in issue was decided upon a statute defining burglary in the same language as our own. Rev. Codes, § 7406; Walker v. State, 63 Ala 49, 35 Am. Rep. 1. Where the instrument used to do the breaking is insufficient to further aid in the commission of the crime; and is used only for the breaking and with no other purpose, the crime is not complete. Hughes Case, 1 Leach C. C. 178 cited in Walker v. State, 35 Am. Rep. 3. But when the instrument is introduced for the purpose of taking the property, or for the purpose of both breaking and taking the property by one and the same act, the offense is complete. 4 Ala. 643; 39 Am. Dec. 314. Appellants second assignment of error, viz: "that the Court erred in releasing the defendant without bail pending appeal," depends upon the question whether respondent can again be tried for the same offense in the event of reversal. Secs. 8334, 8358 and 8350, Rev. Codes. But see Sec. 13, Const.
David R. Pierce, for respondent.
It is admitted that the proof establishes the boring by respondent of three auger holes through the side of the granary, below the surface line of the wheat therein contained, the same so communicating as to form one large hole through which the grain could escape. But this use of the instrument for making the break, in the absence of all evidence that the auger was introduced into the building for the purpose of aiding respondent in stealing within the building, is insufficient to show an entry. 2 Bish. New Cr. L. § 93; Reg v. O'Brien, 4 Cox. C. C. 398; Rex v. Rust, 1 Moody 183; Rex v. Hughes, 1 Leach 183; 1 Roscoe's Cr. Ev. 366; 1 Hale's P. C. 555; 2 East P. C. 490; Hawk P. C. Bk. 1, Ch. 38, § 11. The entry must appear to have been made with the immediate intent to commit a felony as distinguished from the previous intent to procure admission. State v. McCall, 4 Laws Cr. Def. 855, 39 Am. Dec. 314; 1 Leach 452; 2 Arch. Cr. Pr. & Pl. 1084; Clark Cr. L. 235.
The record in this case shows that the defendant was charged with the crime of burglary in the third degree, by an information filed against him by the state's attorney of the county of Cass, and that the defendant pleaded not guilty to such charge, whereupon a trial was had. At the close of the testimony offered in behalf of the state, and on motion of counsel for the defendant, the trial court advised and practically directed a verdict of acquittal, and such verdict was accordingly returned. The defendant was then discharged from custody, despite the protest of the state's attorney, who requested the Court to hold the defendant to bail pending an appeal of the case in this Court. The state's attorney assigns as error the direction to acquit, and the refusal of the trial court to hold the accused to bail pending the appeal.
There is no conflict of evidence in the case, nor is there any dispute between counsel as to the facts. The evidence shows that at the time and place stated in the information there was a certain building used as a granary, in which there was stored in bins about 800 bushels of wheat, and that in the night time three holes were bored with a two-inch auger through the walls of the granary, and into one of the wheat bins. The three holes were so connected together as to make one large opening through the walls, and into the wheat bin. It further appears that there was a depression in the mass of wheat directly over the aperture made by the auger indicating that wheat had passed out of the bin through such aperture to the amount of several bushels, and, further, that some wheat was spilled on the ground directly under the opening through the wall of the granary. Other evidence tended to connect the defendant with the felonious asportation and sale of the grain. Upon this evidence the question is presented whether the state had made out a prima facie case when the evidence closed and the state rested its case. Defendant's counsel contends that the state had failed to establish two of the three essential elements of the crime charged, viz: the entry into the granary, and the intent to steal therein. In support of this theory, attention is called to the evidence which clearly indicates how the grain was extracted from the granary, and negatives the idea that the person who bored the holes through the walls went inside the building to steal therein, or for any purpose whatever. Nor is it claimed in behalf of the state that the accused personally went inside the granary for any purpose. As to the intent to steal inside the granary, the evidence, in our judgment, leaves no room for doubt. The accomplished fact clearly reveals the motive and purpose with which the act was done. The wheat was stored within the granary, and the evidence tends to show that the same was by the acts and agency of the accused taken possession of...
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