State v. Ebel

• Citation: 15 P.2d 233,92 Mont. 413
• Decision Date: 24 October 1932
• Docket Number: 6980.
• Parties: STATE v. EBEL.
• Court: United States State Supreme Court of Montana

15 P.2d 233

92 Mont. 413

STATE v. EBEL.

No. 6980.

Supreme Court of Montana

October 24, 1932

Appeal from District Court, Blaine County; C. B. Elwell, Judge.

Walter Ebel was convicted of the crime of burglary in the daytime and he appeals.

Reversed and remanded for a new trial.

C. R Stranahan, of Havre, for appellant.

L. A Foot, Atty. Gen., and Harry L. Burns, of Chinook, for the State.

MATTHEWS J.

This defendant, Walter Ebel, was convicted in Blaine county of the crime of burglary in the daytime, committed, it is charged, by the entry of a certain building, to wit, "a certain sheep wagon *** being then and there the dwelling house of one James Sullivan," with felonious intent.

The defendant has appealed from the judgment of conviction; numerous assignments of error are made, but those urged here are that the information on file does not state a public offense and that the evidence adduced is insufficient to warrant the verdict rendered.

1. The challenge to the sufficiency of the information, raised by objection to the introduction of any evidence, is that larceny from a "sheep wagon," if proved, does not fall within the definition of burglary. Under this head (a) much of counsel's brief is devoted to argument and citation of authorities as to what does and what does not constitute a "dwelling house"; (b) it is urged that a "building" must have permanency of location, without which (c) the accused might be subjected to a succession of prosecutions for the same offense to which he could not successfully plead former jeopardy.

Common-law "burglary" is defined as the breaking and entering of the dwelling house of another, in the nighttime, with the intent to commit a felony therein, but the controlling definition here is: "Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, railroad car, with intent to commit grand or petit larceny or any felony, is guilty of burglary." "Every burglary committed in the nighttime is burglary in the first degree, and every burglary committed in the daytime is burglary in the second degree." Sections 11346, 11347, Rev. Codes 1921.

(a) The manner in which the foregoing statutory provisions modify the common-law definition is clearly pointed out by the Supreme Court of California in passing on section 459 of the Penal Code of California, as it existed prior to 1913, when it was identical with our section 11346 above. "While the language of the statute might have been made more definite and certain by employing words in common use, it could not well be made more comprehensive, and we think that the absence of more particular terms of description indicates an intention, on the part of the Legislature, to include every kind of buildings or structures 'housed in' or roofed, regardless of the fact whether they are at the time, or ever have been, inhabited by members of the human family. A house, in the sense of the statute, is any structure which has walls on all sides and is covered by a roof." People v. Stickman, 34 Cal. 244. The element of human habitation was deliberately left out of our definition in declaring that the entry, with the intent described, into "any house *** or any other building" is burglary, and it is said that a building may fall within the statutory definition, although when the statute was enacted, no such building as that described was known to the state. State v. Bishop, 51 Vt. 287, 31 Am. Rep. 690.

Here we have "a structure which has walls on all sides and is covered by a roof"--a house, a building.

(b) But it is urged that the "sheep wagon" does not come within the statute because the structure is erected, not upon the ground, but upon a wagon and can be moved from place to place. On this point counsel relies chiefly upon the decision in Williamson v. State, 39 Tex. Cr. R. 60, 44 S.W. 1107, 1108, 73 Am. St. Rep. 901, wherein a "header box" on wheels, designed to travel with a heading machine for the reception of headed grain, was held to be not a "house" within the meaning of the Texas statute. There it is said by way of argument that the "box" on wheels had "no permanency of location"; but it is further said that it was not intended for habitation "or other purposes for which houses are ordinarily used," and, as showing that the court did not consider the first objection controlling, it declared: "We would not be understood as holding that it is absolutely necessary that the structure, in order to be considered a house, should be fixed to the soil, or that because it is portable it would not be considered a house." The controlling feature of the case is that the header box was not intended for any of the ordinary uses to which a house or building was put; it differed from the ordinary wagon used for hauling grain only in that it was fitted, for convenience with a particular kind of box, lower on the one side than the other, and was covered with canvass to protect the heads of grain.

This is in conformity with the general rule that a structure, to be termed a building, must have been erected for the purpose of habitation by humans or animals, or for some purpose of trade, manufacture, or the housing of goods and chattels. Favro v. State, 39 Tex. Cr. R. 452, 46 S.W. 932, 73 Am. St. Rep. 950; Sacks v. Legg, 219 Ill.App. 144; City of Concord v. Morgan, 74 N.H. 32, 64 A. 725.

While a "building" is usually real property, it may be personal property. Wells, Fargo & Co. v. Jersey City (D. C.) 207 F. 871.

It has been held that the familiar "lunch wagon" is a building. Town of Montclair v. Amend (N. J. Sup.) 68 A. 1067.

Here we have a like structure, erected for the purpose of habitation and the housing of the goods and chattels of the sheep herder, inclosed within four walls and roofed over and meets all the requirements of the definitions given of a "building."

[c] While Sullivan's employer owned a number of such portable houses, the information meets the requirement of definiteness and certainty of description, in that it describes the particular structure as that assigned to the man Sullivan as a dwelling house; the defendant is in no danger of being put again in jeopardy for the same alleged entry even though the sheep wagon should be moved to another location.

To hold that the verdict and judgment should be set aside because the house entered was set on wheels would be extremely technical, and on this phase of the case we quote with approval the following from State v. Bishop, above: "Names change often with the habits and customs of the people; it is not so important to determine the name, as the thing, wherein burglary, by the statute, may be committed. That subtle astuteness that would discover a difference where none exists, and would find a way of escape *** through narrow crevices of the law, serves no useful purpose. When one is charged with crime in plain language, and convicted by honest men upon legal evidence, it is better that he work out the penalty to the relief of the public and the safety of the State."

The information charges burglary as defined by our statute.

2. The evidence on which the jury returned its verdict of guilty is substantially as follows:

For some time prior to August 15, 1930, the defendant Walter Ebel had been assisting A. H. Benz in the harvest field, but on that day "heading" was halted on account of rain, and Ebel decided to go to his home some ten miles distant over the "Bagan" road; he left the Benz place some time after 2:30 p. m. and arrived home about 5 p. m.; he drove through his father's place just before reaching home.

It seems that there were two ways south of the Benz ranch, one through the Richmond ranch, the other not. Richmond and his wife testified that Ebel went through their place; he swore that he did not.

James Sullivan was employed as sheep herder for Ray Runyon and lived in a sheep wagon which had been stationed, for more than three weeks, a short distance from the Bagan road between the Richmond place and Jacob Ebel's place.

No one saw Ebel leave the Benz place; Benz and others left about 2 p. m., at which time Ebel was changing the oil in his Whippet coupe; he then had no chains on the car. The coupe was practically new.

One Delford Brinkman testified that, at about 4 p. m. he saw a "new" coupe leave the road and cross the field to the sheep wagon; he was too far away to see who was in it. Sullivan also saw the coupe drive to the sheep wagon while he was some distance away; it stayed at the wagon for about twenty minutes; he watched the car drive back to the road and proceed in the direction of defendant's home. Sullivan returned to the wagon about 7:30, when he discovered the cupboards therein open and practically all of his "grub" recently delivered at the wagon, including a pail of lard, a slab of bacon, and a box of prunes, gone. At the time he thought the marauder had also taken certain wearing apparel, but later found that he was mistaken as to this. The tracks left by the car at the wagon were plain in the mud; they showed that the car had chains on.

Sullivan further testified that the wagon had been entered three weeks before the 15th of August, at which time foodstuffs and a comb had been taken.

On the morning of August 17th Sullivan, with Sheriff Fleming, armed with a warrant to search the Jacob Ebel home which did not mention groceries but described the wearing apparel, followed the tracks of the car that had been at the wagon to the road down the road to the Jacob Ebel home, and from there to the home of the defendant, where chains seem to have been taken off it and mud knocked off the chains. The defendant admitted that he traveled the route described, but...