State v. Roberts

• Decision Date: 05 November 1928
• Docket Number: 21462.
• Citation: 271 P. 583,149 Wash. 504
• Parties: STATE v. POBERTS.
• Court: Washington Supreme Court

271 P. 583

149 Wash. 504

STATE v. POBERTS.

No. 21462.

Supreme Court of Washington

November 5, 1928

Department 1.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Henry Roberts was convicted of second degree burglary, and he appeals. Affirmed.

Wesley Lloyd, of Tacoma, and Frank P. Christensen, of Olympia, for appellant.

W. J Milroy and Leonard E. Top, both of Olympia, for the State.

TOLMAN J.

This is an appeal by the defendant from a conviction upon a charge of second degree burglary. The record also shows that he has a separate and independent appeal pending in this court from a conviction under the habitual criminal act and none of the questions raised on that appeal will be considered in this. The error here assigned upon the sentence to life imprisonment must therefore be left to be considered on the other appeal.

Outside of the question of the sentence, the only errors assigned are based upon the refusal of the trial court to instruct the jury to acquit, the submission of the issue to the jury, and the denial of a motion for a new trial. These go to the sufficiency of the evidence only, which was largely circumstantial. It seems to be urged that there was no evidence sufficient to take the case to the jury on the question of the breaking and entry, or on the question of the attempt to commit, or the committing of, the crime of taking and carrying away money and checks as charged. The information charges that the appellant willfully, unlawfully feloniously, and with the intent to commit the crime of larceny therein, did break and enter a building and room wherein property was kept for use, sale, and deposit, 'to wit, that certain building and room known as the store of the J. C. Penny Company located at 117-119 East Fifth avenue in the city of Olympia in said county and state.'

The statute (Rem. Comp. Stat. § 2579) defines a second degree burglary as the entry of the dwelling house of another, or the breaking and entry of any building, or part thereof, or a room or other structure wherein any property is kept for use sale, or deposit, with the intent to commit some crime therein, or, having committed a crime therein, the breaking out of such building, room, or structure. One of the witnesses on behalf of the state and one or more on behalf of the appellant gave evidence from which the jury might have found that the building charged as having been burglarized was entered by being opened from within, or in the parlance of the police, was an 'inside job.' The state, however, presented much other evidence which, if believed, would justify the jury in finding a breaking and entry from the outside; but, even if that had not been the case, enough was shown to have warranted the jury in finding, if that was necessary, that the appellant or some confederate had entered the storeroom prior to the close of business hours, and thereafter had feloniously taken the money and property and broken out of the building, so that we are quite satisfied that there was ample evidence upon this point to justify the verdict.

On the question of the intent to commit the crime of larceny in the building, or the commission of such crime, it seems to be urged that the evidence does not foreclose...