State v. Hart

• Decision Date: 29 March 1913
• Parties: STATE v. HART.
• Court: South Carolina Supreme Court

77 S.E. 862

94 S.C. 214

STATE v. HART.

Supreme Court of South Carolina

March 29, 1913

Appeal from General Sessions Circuit Court of Marlboro County; J. S Wilson, Judge.

Alfred Hart was convicted of housebreaking and petit larceny, and he appeals. Reversed.

J. K Owens, of Bennettsville, for appellant. Solicitor Spears, for the State.

WOODS J.

The defendant was convicted of housebreaking and petit larceny the charge being that he broke and entered the cotton seed house of C. P. Hodges and stole cotton seed therefrom. The case contains this agreed statement: "Mr. C. P. Hodges owned a cotton seed house in Marlboro county. About six or eight feet from the ground was an opening through which cotton seed from the wagons was pitched into the house. The doors of the seed house were locked the evening before, and were found locked on the following morning. This opening was about two feet wide and several feet long. This opening was provided with a shutter or blind. There was evidence admitted to the effect that the habit of Mr. Hodges, or the men in his employ, was to lock the building and close up the seed house at night, and Hodges testified, over objection, he supposed it was done on this occasion. The testimony was conclusive that the seed stolen was of less value than $20."

The appeal depends mainly on the assignment of error in the following instruction given to the jury: "There must be a breaking, and there must be an entrance. The courts have decided that to go down a chimney, not the ordinary way of entering a house, not the usual way, to go down a chimney would be a breaking in law. The courts have decided that--that it is not the usual way to enter a building. I say there must be a breaking and entry in the nighttime, as charged in the indictment, in order for you to convict the defendant on the first count." We think, as contended by defendant's counsel, that the jury must have understood from this instruction that entering in any unusual way, as in the present case, entering through a hole in the wall, even if left unclosed, would be a breaking. This was an incorrect statement of the law. It is true that entering by a chimney although without any active breaking, is a constructive breaking. 1 Hale's P. C. 552; 1 Hawkins' P. C. c. 58, § 4; State v. Boon, 35 N.C. 244, 57 Am. Dec. 555; Olds v. State, 97 Ala. 81, 12 So. 409. This exception to the general rule is placed on the somewhat...