State v. Mish

• Decision Date: 18 November 1907
• Citation: 92 P. 459,36 Mont. 168
• Parties: STATE v. MISH.
• Court: Montana Supreme Court

92 P. 459

36 Mont. 168

STATE v. MISH.

Supreme Court of Montana

November 18, 1907

Appeal from District Court, Silver Bow County; Michael Donlan Judge.

Tom Mish was convicted of an attempt to commit burglary, and appeals. Affirmed.

Brantly C.J., dissenting in part.

Maury and Hogevoll, for appellant.

Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen for the State.

SMITH J.

The defendant in this case was convicted in the district court of Silver Bow county of an attempt to commit the crime of burglary, and appeals. His counsel contends that the information filed against him does not state facts sufficient to constitute a public offense, for "the reason that the information does not show that the room the defendant entered was not his own." The charging part of the information is as follows: "That at the county of Silver Bow, state of Montana, on or about the 13th day of January, A. D. 1906 and before the filing of this information, the said defendant, Tom Mish, did willfully, unlawfully, and feloniously attempt to willfully, unlawfully, and feloniously enter that certain room numbered 59, in that certain house known as the 'Mullin House,' situate in Centerville, Silver Bow county, state of Montana, with the intent then and there and therein willfully, unlawfully and feloniously to commit larceny." Our Penal Code, § 820, reads thus: "Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, with intent to commit grand or petit larceny or any felony is guilty of burglary." Burglary, as a common-law offense, was the breaking and entering of the dwelling house of another, in the nighttime, with intent to commit a felony therein, whether the felony was committed or not. State v. Copenhaver, 35 Mont. 342, 89 P. 61. It was an offense against the habitation, and not against the property. 6 Cyc. 172; State v. Morrissey, 22 Iowa, 158. But the Attorney General contends that the nature of the entry is not material. He says in his brief: "The ownership of the building entered, and the ownership and value of the goods, are immaterial, except as matters of description. And if a man enters his own house for the sole purpose, and with the criminal intent to steal the goods of another therein, he is guilty of burglary. At least, if the defendant at the time had the legal right and authority to enter the house, it is a defense, and not a matter of pleading."

The opinion of the court in People v. Barry, 94 Cal. 481, 29 P. 1026, seems to support this contention. In that case the defendant was convicted of burglary in having entered a grocery store, by the public entrance, during business hours, with intent to commit larceny. The following instruction was requested by the defendant and refused, to wit: "The defendant cannot be convicted of the crime if he had a right to enter the store of Murry & Seegelkin at the time alleged in the information, even if you believe from the evidence that at the time he entered he intended to commit larceny." The California statute defining burglary is identical with our own. The court in that case said: "Even under the present section of the Penal Code, many acts constitute burglary which but a few years ago were a different offense, or no offense whatever. As to the acts which shall constitute the crime of burglary, that is a matter left entirely to the policy of the Legislature, within its constitutional powers; and, when that body has said that every person who enters a store with the intent to commit larceny is guilty of a burglary, the language is so plain and simple that rules of statutory construction are not required to be consulted. The meaning is patent upon the face of the statute. No words are found in the statute qualifying the character, kind, time, or manner of the entry, save that such entry must be accompanied with a certain intent; and it would be judicial legislation for this court to interpolate other conditions into the section of the Code." Four of the justices concurred in the opinion on this branch of the case, and three dissented. Mr. Justice De Haven, in dissenting, said: "I concur in the judgment, but dissent from so much of the opinion of Mr. Justice Garoutte as seems to hold that one who enters the store of another with intent to commit larceny therein is guilty of burglary, although the entry was open, and with the actual and free consent of the owner. I do not think that this is a correct interpretation of our statute defining the offense of burglary. I think, in order to constitute a burglarious entry, the act of entering must be itself a tresspass-an intrusion into the building alleged to have been entered, an entry without the consent of the owner. State v. Moore, 12 N.H. 42." In the case of State v. Moore, 12 N.H. 42, above referred to, the defendant was convicted of burglary for having entered the barroom of a public inn while he was a guest at the inn with intent to steal money from the cash box. The court, in setting aside a verdict of conviction, said: "The act of stealing is evidence of the intent to steal; but is hardly sufficient to rebut the presumption that where he lawfully entered he entered for a lawful purpose. To hold that, for a lawful entry, a party could be punished, because, after such entry, he does an unlawful act, would be to find him guilty of a crime by construction, a result which the law, in its endeavors always to ascertain the real intention of the accused, invariably, in theory, avoids, and which has seldom, in modern times, happened in practice. A case is put by Lord Hale, the reasoning of which is analogous to that we have used in this case. 'It is not a burglarious breaking and entry if a guest at an inn open his own chamber door, and takes and carries away his host's goods, for he has a right to open his own door, and so not a burglarious breaking.' 1 Hale, P. C. 553, 554. If a burglary could not be committed because the party has a right to open his own door, notwithstanding the subsequent larceny, the same principle would seem to be applicable here, where the prisoner had a right to enter the house, and where, by parity of reasoning, his subsequent larceny would not make his original entry unlawful." Thus it will be seen that these two cases embody the question we are considering, and decide it in different ways. We agree with the opinion of Judge De Haven, that, in order to constitute a burglarious entry, the act of entry must be itself a trespass. It may be that a man may burglarize his own house by entering therein, at a time when he has no right to enter, with intent to commit petit larceny or any felony. But, when the entry is lawful, what crime does he commit by simply having a felonious intent to steal? Our Code says that in every crime there must exist a union or joint operation of act and intent. If the act of entry by the accused is rightful, and the intent to steal is never executed, of what is he guilty? The fallacy of any other conclusion is brought forcibly to us when we consider that in the present case the defendant is simply accused of an attempt to commit burglary. Assume that the room was his own, and that, at the time, he had a right to enter it. He is then accused of attempting to do a lawful act with an unlawful intent, to be thereafter executed. The union of act and intent is wanting. If this is attempted burglary, wherein does it differ, in its elements, from an attempt to commit larceny? But the California court says, in effect, that the Legislature has the power to declare a lawful entry with an unlawful intent, burglary.

Without deciding whether the Legislature has the power to declare an act which is not malum in se unlawful, except in the reasonable exercise of the police power, we are of opinion that the Legislature in enacting our burglary statute had no such intention. It may be presumed, we think, that the Legislature, in defining burglary and larceny, had in mind the common-law elements of those crimes, and intended to punish two different classes of offenses, and two offenses analogous, at least, to the common-law offenses. Therefore they used the terms "burglary" and "larceny."

The case at bar is somewhat different from either the California case or the one from New Hampshire, because it may be argued that no man has a right to enter either a grocery store or a barroom of another for an unlawful purpose; but a man may lawfully enter his own house or room at any time, provided he has not parted with the right to enter at that particular time, and the unlawfulness of his intentions with regard to acts contemplated by him after entry cannot, in a criminal case, characterize the rightful act of entry. See note to Six Carpenters' Case, 1 Smith's Leading Cases, pt. 1 259-264. We hold that the information should negative the idea that the defendant at the time of entry had...