State v. Pigques

• Decision Date: 10 March 1958
• Docket Number: No. 1,No. 46262,46262,1
• Citation: 310 S.W.2d 942
• Parties: STATE of Missouri, Respondent, v. Frank PIGQUES, Appellant
• Court: Missouri Supreme Court

Page 942

310 S.W.2d 942

STATE of Missouri, Respondent, v. Frank PIGQUES, Appellant.

No. 46262.

Supreme Court of Missouri, Division No. 1.

March 10, 1958.

James A. Bell, St. Louis, for appellant.

John M. Dalton, Atty. Gen., J. Richard Roberts, Sp. Asst. Atty. Gen., for respondent.

VAN OSDOL, Commissioner.

Defendant, Frank Pigques, was charged with and found guilty of the offense of attempted burglary in the second degree, Sections 560.070 and 556.150, RSMo 1949, V.A.M.S., and his punishment assessed by the jury at two years' improsonment in the penitentiary. He has appealed from the ensuing judgment.

The defendant was employed by Louis Kunin and Allen Keyser who operated a business at 1550 South Second Street, St. Louis, Missouri, under the name of United Poultry. The testimony indicated that on September 22, 1956, the defendant concluded his work at about 1 p. m. and went across the street to a tavern. At 3:30 p. m., Mr. Kunin locked the building and he and his bookkeeper left the premises. After they had entered Mr. Kunin's car they observed the defendant going across the street to the United Poultry building. He went to the rear of the building and Kunin drove to a point in the opposite alley where he could watch defendant. He testified that defendant had some sort of instrument in his hands and was trying to pry the garage door open. At this point defendant apparently became frightened and dashed across the alley into a lot where lumber and pipe were stored. Mr. Kunin then left the scene and went in search of a policeman. Within a few minutes he found a police car and both cars immediately proceeded to the rear of the poultry building.

The doors where defendant had been seen led into a portion of the building which is referred to as the garage. At that place there were two sliding doors which appeared to be no longer used for ingress and egress as two 2X4's had been nailed across the inside of the doors for 'permanent security.' Recessed about one foot behind these wooden doors was another door which was made of heavy-gauge wire mesh screening. This screen door was locked and 2X4's had also been nailed across it. When Mr. Kunin and the police arrived at the building they found that the wooden doors had been pried open and the defendant was in the area between the wooden doors and the screen door herein described. When questioned as to his reason for being there, defendant stated that he had gone behind the doors to urinate. An examination of the area, however, did not indicate that he had done so. There was no evidence of any attempt to get through the inner door.

Mr. Kunin and one of the officers examined the interior of the building and found two crates of dressed chickens hidden behind a door in the garage. Those chickens were ordinarily kept in the cooler. At that time defendant denied that he had placed the chickens there, but, nevertheless, offered to pay Kunin for them. When questioned the next day, defendant told the police that 'he had hid the chickens with the intention of coming back later and breaking in and getting them.' The defendant did not testify at the trial.

The defendant's first contention is that the evidence is unsufficient to support a conviction of attempted burglary because all of the evidence was to the effect that defendant was inside the wooden doors and hence he had entered the building and was therefore guilty of burglary, if anything. It is provided in Section 556.160, RSMo 1949, V.A.M.S., that 'No person shall be convicted of an * * * attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person * * * in pursuance of such attempt.'

It may not be said that defendant was shown to have committed a burglary, unless the evidence indicated that he was guilty of breaking and entering the building with intent to steal goods and merchandise kept therein. Section 560.070, supra. There was substantial evidence tending to show that defendant broke open the outer wooden doors heretofore described and that he did so with intent to steal chickens deposited in the building. All of the evidence was to the effect that defendant had entered into the space between the outer wooden doors and the inner wire-mesh door. The question presented, therefore, is whether his entry into that space would constitute an entry into the building within the meaning of Section 560.070, supra. If that question is answered in the affirmative, then, under all of the evidence, we must conclude that defendant was shown to have perpetrated the completed offense of burglary, and, in that event, under the provisions of the foregoing statute, he could not have been properly convicted of an attempt. That is to say, if in this case the only evidence of an attempt to commit burglary is that which shows the crime of burglary was fully perpetrated, the case falls within the provisions of Section 556.160, supra, and the trial court's submission of the issue of defendant's guilt of the crime of attempted burglary was erroneous. State v. Scott, 172 Mo. 536, 72 S.W. 897.

(It would appear to by the customary practice of prosecuting officials, in cases where there may be doubt as to whether a defendant has committed the offense or merely an attempt, to charge the offense, and then upon a trial, the issue of defendant's guilt as to either the offense charged or an attempt [and perhaps in some instances both] may be submitted to the jury in accordance with the facts disclosed by the evidence. State v. Scott, supra; State v. Carr, 146 Mo. 1, 47 S.W. 790; Section 556.220, RSMo 1949, V.A.M.S.)

As stated, the evidence shows and it is undisputed that defendant had entered the space between the line which had been delineated by the outer wooden doors before they were breached and the inner wiremesh door. Now, the evidence was that the inner door was such as would require force to break and pass through it. It was locked and 2X4's had been nailed across it. A witness for the State said that in order to get inside the building defendant 'would have to break through the wire mesh. * * * Maybe if you jumped against the mesh hard enough he could have probably gone through it.' Therefore, the evidence shows the inner wire-mesh door, until breached, was an additional barrier securing the building from entry by one intending to steal. As we have said, there was no evidence of any attempt to get through the inner wire-mesh door.

Entry is an essential element of the crime of burglary as understood at common law and as defined by our statute, Section 560.070, supra. Literally, 'entry' is the act of going into the place after a breach has been effected, but the word has a broader significance in the law of burglary, for it is not confined to the intrusion of the whole body, but may consist of the insertion of any part for the purpose of committing a felony. 9 Am.Jur., Burglary, Sec. 16, p. 249. An entry of a building, that is, an entry (with intent to steal) of the space within the building, is necessary to a completed crime of burglary; but any entry, however slight (by and part of the body), procured by breaking, with intent to steal (or to commit another crime therein, as the charge may be) is sufficient. Vol. 2, Anderson, Wharton's Criminal Law and Procedure (1957), Sec. 421, pp. 42-43. (But we bear in mind that the consummation of the intent to steal is not necessary to complete the crime of burglary. State v. Shipman, 354 Mo. 265, 189 S.W.2d 273; State v. Farris, Mo.Sup., 243 S.W.2d 983.)

Returning to our case--we have the opinion that when defendant had breached the outer wooden doors and entered the area immediately without the inner wiremesh door, he had only partially progressed in the execution of his burglarious intent to a point where he could have continued in breaching a way through the wire-mesh door--then to enter the building in his intent to steal. But when he had reached this point in making a breach he became alarmed and ran away.

We believe the evidence does not show the crime of burglary was fully perpetrated; but, obviously, there were shown overt acts in the effort to break and enter the building (with intent to steal) which justified the submission and supported the conviction of defendant of an attempt to commit burglary. Section 556.150, supra.

It was argued that the space between the outer wooden doors and the inner door at the aperture of the doorway of the building in the case at bar is analogous to the spaces within chimneys and attics of buildings. We could not follow that argument.

Surely, it has been held that where one enters a chimney with intent to steal there is sufficient breaking and entering to constitute burglary, although there was no entry of a room below. Olds v. State, 97 Ala. 81, 12 So. 409. We think the chimney cases are in line with the rule with respect to the essentiality of an 'entry' of a building, that is, an entry of the space within the building, because a chimney is a part of the building, and when one enters a chimney he is in the building. In Rex v. Brice, Russ. & Ry. 450, 168 Eng.Rep. 892, ten of the twelve judges were of the opinion that a 'chimney was part of the dwelling-house; that the getting in at the top was a breaking of the dwelling-house; and that the prisoner, by lowering himself in the chimney made an entry into the dwelling-house.' What makes chimney cases exceptional is that no obstruction bars or secures against an entrance through the vent of a chimney. Nevertheless, as stated, it is held that if a thief goes down a chimney to steal, there is a 'breaking' and entering. The rationale is--a chimney is a necessary opening and needs protection. It is a part of the dwelling house, and 'is as much shut as the nature of the thing will admit.' State v. Willis, 52 N.C. 190; Vol. 2, Wharton's Criminal Law, 12th Ed., Secs. 982 and 991, pp. 1283 and 1287; and see Donohoo v. State, 36 Ala. 281...