State v. Scott

• Decision Date: 08 March 1947
• Docket Number: 36786.
• Citation: 162 Kan. 571,178 P.2d 182
• Parties: STATE v. SCOTT.
• Court: Kansas Supreme Court

178 P.2d 182

162 Kan. 571

STATE v. SCOTT.

No. 36786.

Supreme Court of Kansas

March 8, 1947

Appeal from District Court, Shawnee County, Division No. 2; Paul Heinz, Judge.

Appeal from District Court, Shawnee County, Division No. 2; Paul Heinz, Judge.

Ted Scott was convicted of burglary in the first degree, and he appeals.

Syllabus by the Court.

1. The general rule in the absence of statutory provision to the contrary, the nighttime, within the definition of burglary is, as was held at common law, that period between sunset and sunrise during which there is not daylight enough by which to discern a man's face.

2. In a prosecution for burglary in the first degree under G.S.1935 21-513, the requirement of a human being in the dwelling house at the time is satisfied where the evidence discloses human beings were at the time occupying a large, furnished railed and roofed but otherwise open porch, joined to and made a part of the dwelling house, which was customarily used during the summer months as a part of the dwelling house.

Hall Smith, of Topeka, for appellant.

A. B Mitchell, Atty. Gen., and Allen Meyers, Co. Atty., and Maurice D. Freidberg, Asst. Co. Atty., both of Topeka, for appellee.

WEDELL Justice.

This was a prosecution for burglary in the first degree. Defendant was convicted and appeals.

The pertinent portion of G.S.1935, 21-513, under which appellant was prosecuted provides:

'Every person who shall be convicted of breaking into and entering, in the nighttime, the dwelling house of another, in which there shall be at the time some human being, with intent to commit some felony, or any larceny therein * * *.'

Appellant argues the evidence failed to establish (1) the burglary was committed in the nighttime; and (2) that at the time of the burglary there was a human being in the dwelling house.

We do not deem it necessary to narrate all of the evidence relative to the time element. The offense was alleged to have been committed in Topeka, Shawnee county. Appellant's own evidence was that the records of the weather bureau office in Topeka indicated the sun set at 7:52 on June 24, 1946, the day of the alleged offense. Appellant's witness, a city police officer, dispatched a radio call to 1601 Harrison, the place of the alleged burglary, at 8:41 p. m. Other police officers, witnesses of the appellee, testified they received the radio dispatch at 8:41 p. m. while in their police car and they were at the time only nine blocks from the scene of the alleged burglary; that their car lights were turned on at the time; they were unable to discern human features without lights; they used the spotlight for that purpose and when they arrived at 1601 Harrison they were unable to discern the features of appellant without the use of a flashlight.

Other testimony of appellee relative to the time of the burglary ranged from about 8:00 to 8:30 and 9:30 p. m.; the state's witness who had knocked appellant down and wrestled with him after he had come out of the dwelling testified it was too dark to see appellant's facial features sufficiently to recognize him and that he was able to discern his features only after the police car arrived and threw its lights onto appellant.

In the absence of a statutory definition of nighttime it appears the evidence was sufficient. In 9 Am.Jur., Burglary, § 18, it is said:

'At common law, as has been stated, the burglarious act must be committed in the nighttime. This is not confined to the exact period between sunrise and sunset. The rule is thus laid down by Blackstone: 'If there be daylight or crepusculum enough, begun or left, to discern a man's face withal, it is not burglary. But this does not extend to moonlight.' This rule of Blackstone is substantially supported in those states where there is no statutory definition of nighttime. The fact that features may be distinguishable by reflection from the street lights on the snow or by moonlight does not affect the question of time with respect to burglary.'

In 9 C.J., Burglary, § 28(2), it is stated:

'In the absence of statutory provision to the contrary, the 'night time,' within the definition of burglary, is, as was held at common law, that period between sunset and sunrise during which there is not daylight enough by which to discern a man's face. In some jurisdictions, however, nighttime is defined by the statutes, the definitions varying in the different jurisdictions.'

See, also, 9 C.J., Burglary, § 132, note 15, and 12 C. J. S., Burglary, §§ 14, 60.

Appellant emphasizes certain testimony of the state which he contends shows the offense was not committed in the nighttime. Granting the existence of such evidence it remained the province of the jury to resolve the conflict and if, as here, the jury, after a consideration of all the evidence and under proper instructions, was convinced beyond a reasonable doubt the burglary was committed in the nighttime courts will not disturb the verdict. It is not contended the instructions were erroneous or inadequate.

Appellant also asserts it was not shown that at the time of the burglary there was a human being in the dwelling house. Whether the contention is sound depends upon whether the front porch, under our statutes and the circumstances to be narrated, constituted a part of the dwelling house.

The building was a duplex. It contained a large front porch which, except for a few feet, ran...