State v. Gatewood, 38074

• Decision Date: 23 August 1950
• Docket Number: No. 38074,38074
• Citation: 221 P.2d 392,169 Kan. 679
• Parties: STATE v. GATEWOOD.
• Court: Kansas Supreme Court

Page 392

221 P.2d 392

169 Kan. 679

STATE v. GATEWOOD.

No. 38074.

Supreme Court of Kansas.

Aug. 23, 1950.

Syllabus by the Court

1. Pushing open a closed outer door of the dwelling house of another constitutes an actual breaking within contemplation of a burglary statute and the opening of a closed outer door with felonious intent is sufficient to constitute burglarious breaking.

2. In a prosecution for burglary of a dwelling house of another in the nighttime the 'intent to commit some felony, or any larceny therein' is a necessary element of burglary in the first degree under G.S.1935, 21-513.

3. Intent is a state of mind existing at the time an offense is committed and may be shown by acts, circumstances and inferences reasonably deducible therefrom and need not be established by direct proof.

4. In the absence of proof of other intent, or an explanation of an unlawful breaking and entry into the dwelling house of another at night, the inference is the intent of the intruder who to commit larceny rather than some other felony.

5. The record in a prosecution under G.S.1935, 21-513 examined, and held: (1) The evidence was sufficient to establish (a) a 'breaking and entering' and (b) a prima facie case of intent to commit larceny; and (2) other assignments of error treated in the opinion are not sustained.

Elmer W. Columbia, of Parsons, argued the cause, and John B. Markham and Herman W. Smith, Jr., both of Parsons, were with him on the briefs for the appellant.

J. Logan Shuss, county attorney, Parsons, and John F. Amos, assistant county attorney, Oswego, argued the cause, and Harold R. Fatzer, Attorney General, and Willis H. McQueary, Assistant Attorney General, were with them on the briefs for the appellee.

WEDELL, Justice.

The defendant was charged and convicted of burglary in the first degree and was sentenced pursuant to the habitual criminal act.

The defendant appeals. The terms of the sentence are not involved. Appellant's principal complaint is the evidence did not establish the elements of burglary in the first degree. The burglary statute, G.S.1935, 21-513, insofar as material, reads: 'Every person who shall be convicted of breaking into and entering, in the nighttime, the dwelling house of another, in which there shall be at the time some human being, with intent to commit some felony, or any larceny therein, either--First, by forcibly bursting or breaking the wall, or any outer door, window or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter * * * or, third, by unlocking an outer door, by means of false keys, or by picking the lock thereof, shall be adjudged guilty of burglary in the first degree.'

The pertinent part of the information charged the defendant 'did * * * unlawfully * * * break and enter in the night time of said day into a dwelling house of another in which there was a human being, to-wit: Mrs. Della Haynes Brown, by forcibly pulling open a closed outer door and entering into said dwelling house [description] owned and occupied by Della Haynes Brown * * * with the intent on the part of him to commit a larceny therein. * * *'

It is conceded no property was stolen. It, however, should be observed appellant was not charged with burglary and larceny under G.S.1935, 21-524 but with burglary in the first degree as defined by G.S.1935, 21-513. Material portions of the state's evidence, in substance, disclose:

This incident occurred at the home of the owner; the house was located on the north side of the street and faced south; the owner and a roomer by the name of Grover Cherry were in the dwelling house at the time; after both had retired for the night the owner, occupying of front southwest bedroom was awakened by the slamming of a front screen door; she went to the door and soon saw a man running to the back of the house along the west side; there are two kitchens in the house, one on the northeast corner, the other on the northwest corner; the owner of the dwelling called to Mr. Cherry, who was sleeping in the northeast kitchen; Cherry arose; by that time the man had entered the back screened porch which was on the northwest corner of the house; the only outside entrance to the screened porch was a screen door; it was kept unlocked in order that meter men might enter when appearing to make their readings; a door and window were between the northwest kitchen and the porch; both occupants observed a man on the back screened porch using a flashlight; they were unable to identify him at that time by reason of the fact he was throwing the flashlight into the northwest kitchen; the man then left the porch and went to an outside screen door at the north and rear of the residence; that door entered the northeast kitchen; the inside door at that place was glass paneled; the man attempted to unlock the screen door at that place but was unable to do so; he left momentarily and on his return succeeded in unlocking and opening that outer screen door; he then attempted to unlock the glass paneled door but was unable to do so as a key had been left in the lock on the inside and was turned crosswise; Cherry was standing approximately one foot from the man at that particular time and watched him for three or four minutes while he was trying to unlock the glass paneled door; although it was quite dark there was sufficient light outside for Cherry to identify the appellant; being unable to open the glass paneled door appellant went to the east side of the house and tried various window screens there; he made a hole in one of those screens but was unable to raise the hook; in the meantime the police had been called; one officer had been stationed in the alley north of the premises; the other officer parked his car in front and to the southeast of the building; appellant ran from the east side of the building to the back of the house; the officer who had been stationed in the north alley came into the yard and saw a man running west behind the house and then turn south toward the front along the west side of the house; as the man came to the south the officer in front turned the spotlight on him and he sat down on the front porch and dropped his face into his hands; it was here he was apprehended by the officers.

Appellant contends the evidence did not disclose a 'breaking into and entering' of the dwelling house. We shall first consider the contention as it pertains to the screened in porch. Was that porch a part of the dwelling house? The porch was joined to the building and was connected to the northwest kitchen. A door and a window were in the wall between the kitchen and porch. The porch walls were of wooden construction except for a narrow space which appears to be approximately two and one half or three feet wide between the boarded portions. That space was screened. The only outside entrance to the porch was by way of a screen door. It was kept unlocked in order that meter men might enter to make their readings. G.S.1935, 21-519 provides: 'No building shall be deemed a dwelling house or any part of a dwelling house, within the meaning of the foregoing provisions, unless the same be joined to or immediately connected with, and a part of, a dwelling house.'

The porch apparently was used for dwelling house purposes. A washing machine, an important part of household equipment, was on the porch, as well as three boxes of children's toys, a tricycle and scooter. In State v. Scott, 162 Kan. 571, 178 P.2d 182, we held: 'In a prosecution for burglary in the first degree under G.S.1935, 21-513, the requirement of a human being in the dwelling house at the time is satisfied where the evidence discloses human beings were at the time occupying a large, furnished, railed and roofed but otherwise open porch, joined to and made a part of the dwelling house, which was customarily used during the summer months as a part of the dwelling house.' (Syl. p2.)

We think that by virtue of G.S.1935, 21-519, and the use the screen porch served in the instant case, it constituted a part of the dwelling house. The dwelling house was, therefore, entered.

A close examination of appellant's brief indicates he is not really contending the porch was not a part of the dwelling house. One of his principal contentions is there was no evidence he broke into it. The answer depends upon what constitutes 'breaking into'.

We previously indicated the outside screen door entrance to this porch was unlocked. Appellant was charged with burglary 'by forcibly pulling open a closed outer door.' This court early held proof of that precise charge is sufficient to establish the offense and that it was not necessary there should be any additional breaking to constitute burglary. State v. Moon, 62 Kan. 801, 64 P. 609. Pushing open a closed door constitutes an actual breaking and the opening of a closed outer door with felonious intent is sufficient to constitute burglarious breaking. State v. Moon, supra, 62 Kan. at pages 806, 808, 64 P. 609, and cases there cited; State v. Herbert, 63 Kan. 516, 520, 66 P. 235. This principle is in harmony with well established doctrine. 9 Am.Jur., Burglary, §§ 8-12, incl.; 12 C.J.S., Burglary, § 3(b.): 2 Wharton's Criminal Law, 12th ed., § 973; and anno. 23 A.L.R. 112, 118.

Counsel for appellant argue the evidence did not show the screen door was closed. The argument is based primarily on the italicized portions of the following questions and answers, to wit:

'Q. Was...