State v. Jackson

• Decision Date: 16 November 1961
• Docket Number: No. 35898,35898
• Citation: 366 P.2d 217,59 Wn.2d 117
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Henry, JACKSON, Appellant, Arthur Thomas, Defendant.

Page 117

59 Wn.2d 117

366 P.2d 217

STATE of Washington, Respondent, v. Henry, JACKSON, Appellant Arthur Thomas, Defendant.

No. 35898.

Supreme Court of Washington, Department 1.

Nov. 16, 1961.

Joseph R. Burns, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Victor V. Hoff, Deputy Pros. Atty., Seattle, for respondent.

ROSELLINI, Judge.

The appellant, Henry Jackson, was charged by information with the crime of burglary in the second degree, in King county. He appeals from a verdict of guilty, assigning as error the denial of his motion for dismissal at the close of the respondent's case and his motion in arrest of judgment or for a new trial. His sole contention is that there was not sufficient evidence of a breaking to support the verdict.

RCW 9.19.020 provides:

'Every person who, with intent to commit some crime therein shall, under circumstances not amounting to burglary in the first degree, enter the dwelling house of another or break and enter, or, having committed a crime therein, shall break out of, any building or part thereof, or a room or other structure wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years. [1909 c. 249 § 327 * * *.]'

The evidence tended to show that, on the evening of January 28, 1960, the appellant entered a building known as Thrift Mart, Inc., on Aurora avenue, in Seattle, by climbing on top of a car parked in the alley back of the building, and, with the aid of an accomplice, climbing from that position through a window. A witness observed this entry and called the police, who, upon their arrival at the scene, gained entrance through a fire door leading into an adjoining building, and discovered the appellant hiding under a clothes rack.

The window through which the appellant entered was composed of several sections, from one of which the pane was missing. The manager of the Thrift Mart testified that this opening had been covered by a piece of plywood which he had observed in place on January 27, 1960. This was found on the floor beneath the window shortly after the appellant was apprehended. The store was not open for business during this period, and the manager had been directing the removal of merchandise. He had been in the store on the day of the burglary, and, while he had not observed the plywood in place that day (the window was approximately twelve feet above the floor), he testified that he was working in the area beneath the window and would have observed the piece of wood had it been on the floor.

The appellant was familiar with the building, having worked there on January 27 as a casual laborer.

In instructing the jury concerning the proof necessary to establish a breaking, the court said:

'You are instructed that breaking is the application of force to remove some obstacle...