State v. Lapoint
| Decision Date | 13 October 1913 |
| Citation | 88 A. 523,87 Vt. 115 |
| Court | Vermont Supreme Court |
| Parties | STATE v. LAPOINT. |
Exceptions from Chittenden County Court; William H. Taylor, Judge.
Louis Lapoint was convicted of burglary, and he excepts. Conviction affirmed.
Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.
Theodore E. Hopkins, State's Atty., and Henry B. Shaw, both of Burlington, for the State.
Joel W. Page, of Burlington, and Guy M. Page, for respondent.
The respondent was tried on an information in two counts, the first of which charged burglary and the second larceny; and a conviction was had on the first count. The place entered was a freight car, forming part of a train moving from Richmond to Waterbury. The only direct evidence as to the breaking was that of the respondent, who testified that he and his associate found the door of the car open about an inch, and pushed it open about halfway and climbed in. The respondent has raised by several motions and exceptions the question whether this was sufficient to constitute a breaking.
It may be conceded at the start that by all the earlier cases, and by the great weight of authority to the present day, the further opening of a door left ajar, or of a window slightly raised, is not such a breaking as is essential to the crime of burglary. This being the situation, our examination of the cases will have reference mainly to the reasons given for the rules adopted, and the consistency with which the rules have been applied.
Blackstone says that "if a person leaves his doors and windows open, it is his own folly and negligence." Book 4, *226. This is the same as saying that the law will not undertake to protect by its penalties a man who is not diligent to protect himself. But this is not the rule in other branches of the criminal law; and we do not see that the fact that this crime consists merely of an entrance with intent to commit a further crime calls for any distinction. A man may. recklessly and unnecessarily pass through a group of men excited to the point of violence, but if he is assaulted the penalty will follow. A man may issue a check so carelessly drawn as to afford an attractive opportunity for alteration, but the man who makes the alteration will be guilty of forgery. A woman may associate with men under circumstances of great imprudence, but if a criminal advantage is taken of her situation the act will nevertheless be rape. Then why should not one who is tempted to enter a dwelling with felonious intent by seeing a door which has carelessly been left ajar be held guilty of burglary?
But let us keep the discussion within the limits of the law of the subject. A man may have locks on all his doors and windows, and if he closes the doors and windows without turning a lock, this is not to be accounted negligence. But if in addition to the non-use of his fastenings he leaves a window sash slightly raised, his negligence becomes a shield to the intruder. This distinction evidently turns upon the theory, prominent in both early and recent cases, that the manifest carelessness of the householder tempts the passer-by to enter. It is doubtless true that a window partly raised or a door standing ajar may attract attention and be a temptation to one who might not be disposed to try a window or door to see if it was unfastened. But other conditions quite as likely to attract attention and tempt the observer have been held sufficient to support the charge; for instance, a network of twine covering a window space otherwise open, or a chain attached to the outside of a door and hooked over a nail. Com. v. Stephenson, 8 Pick. (Mass.) 354; State v. Hecox, 83 Mo. 533. And one court has disagreed upon and left undecided the question of breaking, where the covering of a window opening was a cloth hanging from two nails in the top of the window frame. Hunter v. Com., 7 Grat. (Va.) 641, 56 Am. Dec. 121.
The word "breaking" implies the use of force, but it is universally held that the slightest force will be sufficient. It is evident that the question of force has no bearing upon the distinctions affecting this case as they are established by the decisions. The mere lifting of a closed window is a sufficient breaking, but the further raising of a partially opened window is not. The pushing open of a closed but unlatched door is a sufficient breaking, but the pushing back of one found standing ajar is not. And yet the force used in the two cases of either class is of the same character and degree, differing only in the continuance of the effort.
It is said by way of a general designation that the thing moved or displaced to permit the entrance must be something...
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State v. Hageman, 206A82
...evidence when it relates to intent. This is so even if the only evidence of criminal intent is circumstantial. State v. Lapoint, 87 Vt. 115, 88 A. 523 (1913); State v. Moehlis, 250 N.W.2d 42 (Iowa 1977); Phillips v. State, 604 S.W.2d 904 (Tex.Cr.App.1979); Brown v. State, 233 A.2d 445 (Del.......
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People v. Hamilton
...171 Ky. 473, 188 S.W. 676; State v. Henderson, 212 Mo. 208, 110 S.W. 1078; State v. Vierck, 23 S.D. 166, 120 N.W. 1098; State v. Lapoint, 87 Vt. 115, 88 A. 523), as is the opening of an unlocked screen door (United States v. Poppitt, 227 F.Supp. 73, 80). (See 'Arrest Without a Warrant' by W......
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Ball v. State
...42; State v. Nortin, (1943) 170 Or. 296, 133 P.2d 252; Schwartz v. State, (1962) 172 Tex.Cr.R. 326, 357 S.W.2d 393; State v. Lapoint, (1913) 87 Vt. 115, 88 A. 523. The Delaware Supreme Court in Brown, supra, 233 A.2d at 447, "The general rule is that a refusal to give such a charge is rever......
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State v. Moehlis
...circumstantial evidence instruction is not required where there is only circumstantial evidence of the element of intent. State v. Lapoint, 87 Vt. 115, 88 A. 523; 23 A C.J.S. Criminal Law § 1250, p. 620; 75 Am.Jur.2d, Trial, § 845, p. 733. See also 4 Wharton's Criminal Procedure, Charge to ......