State v. Marks

• Decision Date: 31 October 1927
• Docket Number: 4917
• Citation: 260 P. 697,45 Idaho 92
• Parties: STATE, Respondent, v. TED MARKS, Appellant
• Court: Idaho Supreme Court

260 P. 697

45 Idaho 92

STATE, Respondent, v. TED MARKS, Appellant

No. 4917

Supreme Court of Idaho

October 31, 1927

CRIMINAL LAW-BURGLARY-STRUCTURE CONSTITUTED AS BUILDING-"OUTHOUSE"-NO VARIANCE HELD BETWEEN INFORMATION AND PROOF-ORDINARY TERMS AND WORDS NOT DEFINED-BURDEN OF SHOWING ERROR.

1. A small structure built against a larger building, and being completely walled in, with a roof and door thereon, and used for purpose of protecting property placed therein constituted a building used in connection with a larger building, and subject to burglary, within meaning of C. S sec. 8400.

2. Information charging burglary by breaking and entering of an outhouse held not at variance with proof that defendant burglarized a structure attached to a place of business and used for storage purposes, since, though "outhouse" is usually a smaller building subservient to a dwelling-house, it may yet be subservient to and adjoin a business building within meaning of C. S., sec. 8400.

3. When ordinary words and terms of statute are used in the sense in which they are generally understood, it is not necessary to define or explain them.

4. Appellant has burden of showing error on appeal after conviction.

APPEAL from the District Court, of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Judgment of conviction of burglary. Affirmed.

Affirmed.

McNamee & McCarty, for Appellant.

The court should have sustained the defendant's motion and advised the jury to return a verdict of acquittal, as there is a fatal variance between the allegations of the information and the proof submitted in support thereof. (C. S., sec. 8963; 9 C. J., p. 1059; Webster's New International Dictionary; 3 Bouvier's Law Dictionary, p. 2433; 3 Words and Phrases, 2d series, p. 888.)

It was the duty of the court to define the legal meaning of the words "house" and "outhouse" when requested so to do by both the state and the defendant. (C. S., secs. 8400, 8969, 8972; 20 A. L. R. 235; State v. Choate, 41 Idaho 251, 238 P. 538; State v. Petit, 32 Wash. 129, 72 P. 1021; People v. Webber, 138 Cal. 145, 70 P. 1089; Peirce v. Beyer, 66 Colo. 554, 185 P. 348; Firth v. Marcovich, 160 Cal. 257, Ann. Cas. 1912D, 1190, 116 P. 729; 3 Words & Phrases, 2d series, p. 888.)

The court should have sustained the defendant's motion in arrest of the judgment, as the defendant was charged with breaking and entering an "outhouse," while the evidence shows the place alleged to have been entered to be a "wooden box" or "housing" covering a gas pump. (C. S., sec. 8400; 9 C. J., p. 1059; Webster's New International Dictionary; 3 Words & Phrases, 2d series, p. 888; 3 Bouvier's Law Dictionary, p. 2433; State v. Choate, 41 Idaho 251, 238 P. 538; Firth v. Marovich, 160 Cal. 257, 116 P. 729; State v. Rowland Lumber Co., 153 N.C. 610, 69 S.E. 58; State v. Brooks, 4 Conn. 446, 20 A. L. R. 235.)

Frank L. Stephan, Attorney General, and John W. Cramer and Leon M. Fisk, Assistant Attorneys General, for Respondent.

There was no material variance between the allegations of the information and the proof introduced at the trial, and an immaterial variance is not fatal. (C. S., secs. 6722, 9191; People v. Jennings, 298 Ill. 286, 131 N.E. 619; State v. Turnbaugh, 79 Ohio 63, 85 N.E. 1060; Ostendorf v. State, 8 Okla. Cr. 360, 128 P. 143.)

Appellant must affirmatively show that error was prejudicial. ( Territory v. Evans, 2 Idaho (634), 658, 23 P. 115; State v. Abbott, 38 Idaho 61, 213 P. 1024, 224 P. 791.)

The offense of burglary under our statute is not confined to the limitations of the common-law crime of burglary. (C. S., sec. 8400; Tollifson v. People, 49 Colo. 219, 112 P. 794.)

The information sufficiently describes the character of the structure entered, and the proof introduced as to said structure sustains the allegations in the information. ( People v. Stickman, 34 Cal. 242; Grimes v. State, 77 Ga. 762, 4 Am. St. 112; Ford v. State, 80 Fla. 781, 86 So. 715; Orrell v. People, 94 Ill. 456, 34 Am. Rep. 241; Roberts v. State, 55 Miss. 421; 9 C. J. 1034.)

Structures of the type herein entered are subject to statutory burglary. (James v. State, 63 Tex. Cr. 559, 140 S.W. 1086; Crow v. State, 48 Tex. Cr. 25, 85 S.W. 1057; People v. Coffee, 52 Cal.App. 118, 198 P. 213; State v. Terrell, 55 Utah 314, 25 A. L. R. 497, 186 P. 108; State v. Garrison, 52 Kan. 180, 34 P. 751.)

Defendant's third instruction was properly refused. (State v. Williamson, 42 Conn. 261; People v. Stickman, supra; State v. Dan, 18 Nev. 345, 4 P. 336.)

The term "outhouse" under the statute has no such technical meaning as imputed to it by instructions one and two, and these instructions were properly refused. (Webster's New International Dictionary, p. 1530; C. S., secs. 8400, 8832, 8834.)

WM. E. LEE, C. J. Givens and Taylor, JJ., concur. BUDGE, J., Dissenting.

OPINION

WM. E. LEE, C. J.

Appellant was convicted of the crime of burglary in the first degree. The information charged that he wilfully, and, etc., entered in the night-time, an outhouse located at No. 3 Main Street, in the city of Lewiston, used by the Getty Fuel & Feed Company as a gas and oil station, with intent to commit larceny.

The "outhouse" appellant was charged with having entered is a small structure built against a larger building, the latter being the place of business of the Getty Fuel & Feed Company. It houses a pump and gasoline for the Getty Fuel & Feed Company. It has three sides constructed of shiplap, with a sloping roof, and the main building forms the fourth side. It extends out from the main building about three feet, is four feet long, about four feet high in front and about five feet high at the back. The lower one-third of the roof is fastened to the remainder with hinges, and can be raised, being fastened with hooks on the inside. The front of the structure opens as a door and is secured by a padlock. The floor is of earth. There is no opening from the main building into the structure. The evidence shows that the defendant, with a companion, opened the door of this structure with a pass-key and took gasoline therefrom.

It is first contended that the structure was a mere "wooden box" and not such a building as to be the subject of burglary. C. S., sec. 8400, provides that:

"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, or railroad car, with intent to commit grand or petit larceny or any felony, is guilty of burglary."

In determining what constitutes a building, within the contemplation of an analogous statute, it is stated in People v. Stickman, 34 Cal. 242, 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. . . . A house, in the sense of the statute, is any structure which has walls on all sides and is covered by a roof."

The structure was walled in and had a roof and a door; it was erected and used for the purpose of protecting property placed therein. While small, it was more than a wooden box; it was a building, used in connection with a larger building, and subject to burglary. (People v. Coffee, 52 Cal.App. 118, 198 P. 213; Williams v. State, 105 Ga. 814, 70 Am. St. 82, 32 S.E. 129; Favro v. State, 39 Tex. Crim. 452, 73 Am. St. 950, 46 S.W. 932; State v. Terrell, 55 Utah 314, 25 A. L. R. 497, 186 P. 108; James v. State, 63 Tex. Crim. 559, 140 S.W. 1086; Willis v. State, 33 Tex. Crim. 168, 25 S.W. 1119; People v. Franco, 79 Cal.App. 682, 250 P. 698.)

Appellant insists that there is a material variance between the allegations of the information and the proof. The information charged the breaking and entering of an outhouse, located at No. 3 Main Street, in the city of Lewiston, used by the Getty Fuel & Feed Company as a gas and oil station. The proof showed, without conflict, that the defendant and a companion unlocked the door and took a quantity of gasoline from a structure at No. 3 Main Street, in Lewiston, used by the Getty Fuel & Feed Company as a place in which it kept gasoline; that appellant did the exact thing he was accused by the information of having done. He insists, however, that there is a fatal variance because an outhouse, within the burglary statute, must be subservient to a dwelling-house. The words "outhouse" and "outbuilding" are defined as follows:

Bouvier: "Buildings adjoining or belonging to dwellinghouses; buildings subservient to yet distinct from the principal mansion house, located either within or without the curtilage."

The Standard Dictionary: "A smaller building standing apart from but appertaining to a main or larger building or dwelling."

Webster's New International Dictionary: "Outhouse: A small house or building at a little distance from the main house; an outbuilding.

"Outbuilding: A building separate from and subordinate to the main building; an outhouse."

The Century Dictionary: "A small house or building separate from the main building. . . ."

While it might be said that the foregoing definitions are susceptible of the construction that an outhouse must be separate and apart from the main building, the supreme court of Illinois, in Hultin v. Klein, 301 Ill. 94, 20 A. L. R. 230, 133 N.E. 660, in passing on this question, held that:

"From the definitions which have been given, it will be seen that an outbuilding is usually separate from the main building, but this does not necessarily imply removal to such a distance as to not be adjacent or abutting and...