State v. Powell
| Decision Date | 11 November 1899 |
| Docket Number | 11,476 |
| Citation | 61 Kan. 81,58 P. 968 |
| Parties | THE STATE OF KANSAS v. WILLIAM POWELL |
| Court | Kansas Supreme Court |
Decided July, 1899.
Appeal from Lyon district court; W. A. RANDOLPH, judge.
Judgment reversed and cause remanded.
A. A Godard, attorney-general, S. S. Spencer, county attorney, and J. Jay Buck, for The State.
Ed. S Waterbury, for appellant.
William Powell was convicted of burglary in the second degree, and the sentence of the court was five years' imprisonment in the state penitentiary. The sufficiency of the information was challenged for failing definitely to set forth the larceny which the burglar intended to commit. In the first count of the information it charged in appropriate terms that the defendant broke and entered a chicken-house "with intent to steal and commit a felony therein," adding that at the time there was valuable property deposited and kept in the chicken-house, to-wit, nine hens and one rooster of the value of three dollars, being the personal property of the person who occupied and controlled the building.
As will be observed, it does not in express terms allege that Powell intended to steal the chickens in the house, but does charge that he broke into the house with the intent to steal. The intent with which the breaking was done is charged in the language of the statute, and this is ordinarily sufficient to meet the requirements of the law. A burglar might break. and enter a building without knowing what particular property could be found therein, but with the intention to steal whatever he could find that was available. In such a case the intent to steal might be alleged and proved, but it would not be possible to describe the particular property that the defendant intended to steal at the time of the entry. In such a case an averment of intention in the terms of the statute would seem to be sufficient.
Complaint is made of an instruction as to the offense of larceny charged in the second count, but as the defendant was not found guilty of the offense. charged in that count that instruction has become immaterial. Nor was the defendant prejudiced by the statement of the court that two offenses, burglary and larceny, were charged in the first count of the information. Burglary and larceny were not charged, but it was burglary with intent to commit larceny--a single offense. However, the defendant was convicted of but one offense--the one charged--and we do not think that prejudice resulted from the inadvertence or error of the court.
No error was committed in the following instruction:
"If you find that the door of the hen-house was closed, and the defendant, to effect an entrance of such hen-house at the time charged, removed a post or stick which was leaned up against such door and held it shut, the removal of such post and the opening of such door for the purpose of entering such hen-house, as charged, to steal there, would, in the eyes of the law, be a sufficient breaking to constitute the breaking of such building."
The building entered was a substantial structure within which property was kept, and the removal of the post fastening the door must be regarded as a breaking. The law does not fix the standard of quality of fastening necessary to protect property from the incursion of the burglar; but if force be employed to remove the fastening or displace that which has been used to close an opening in a building and protect the property within, it is a breaking within the meaning of the law, and if done with intent to steal or commit a felony, it is a burglary. (The State v. Cowen, 56 Kan. 470, 43 P. 687.)
Complaint is made of the following instruction:
"The possession of property recently stolen, unexplained, is prima facie evidence of guilt of the larceny of the same, and throws the burden of proving how he came into possession of the same upon the possessor; and when burglary is charged in connection with the larceny, and the larceny of the property could not have been effected without the commission of a burglary, then the...
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Younger v. State
...in respect to the recent possession of stolen property for a failure to include "other criminating circumstances" (State v. Powell, 61 Kan. 81, 58 P. 968), instruction so criticized was much stronger than the one here complained of. There the trial court had charged the jury that the unexpl......
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State v. Brady
... ... burglary to cases where the jury find that the larceny and ... burglary were committed at one and the same time, and by the ... same person or persons, is quite generally recognized by the ... courts of other states. State v. Powell, 61 Kan. 81 ... (58 P. 968); People v. Hannon, 85 Cal. 374 (24 P ... 706); Metz v. State, 46 Neb. 547 (65 N.W. 190); ... Ryan v. State, 83 Wis. 486 (53 N.W. 836); Smith ... v. People, 115 Ill. 17 (3 N.E. 733); People v ... Wood, 99 Mich. 620 (58 N.W. 638). In the case at bar the ... trial ... ...
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State v. White
... ... in larceny cases ever since it was formulated. In 1894 it was ... expressly approved in the case of The State v ... Hoffman, 53 Kan. 700, 37 P. 138. The objections to it ... noted above were adverted to in the case of The State v ... Powell, 61 Kan. 81, 58 P. 968, and the court refused to ... extend its application to burglary, but it still remains an ... unmodified expression of the settled law of this state. This ... being true the instruction cannot be condemned ... The ... court gave a brief instruction pointing out ... ...
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State v. Rice
...but the mere possession, without any other facts indicative of guilt, is not prima facie evidence that such person committed a burglary." (p. 86.) authorities cited by counsel go no further than to hold that whether or not the explanation is a reasonable one is a question for the jury to de......