State v. Trombley

• Decision Date: 15 January 1925
• Docket Number: 18856.
• Citation: 232 P. 326,132 Wash. 514
• Court: Washington Supreme Court
• Parties: STATE v. TROMBLEY et al.

232 P. 326

132 Wash. 514

STATE v. TROMBLEY et al.

No. 18856.

Supreme Court of Washington

January 15, 1925

Department 2. Appeal from Superior Court, Snohomish County; Alston Judge.

Earl Trombley and L. M. Cody were convicted of burglary in the second degree, and they appeal. Reversed.

Fullerton J., dissenting.

Lloyd L. Black and Joseph H. Smith, both of Everett, for appellants.

C. T Roscoe, M. H. Forde, and Charles R. Denney, all of Everett for the State.

MITCHELL J.

Earl Trombley and L. M. Cody have appealed from a judgment and sentence on a verdict of guilty of burglary in the second degree.

Several assignments of error are presented. It is necessary to consider only the one that there was a failure of proof. The information charged the appellants with the crime of burglary in the second degree, in that they feloniously broke and entered the storeroom of Bergman-Elzey in Everett, Wash., wherein property was kept for use, sale, and deposit, with intent to commit a crime therein. The statute upon which the information rests, section 2579, Rem. Comp. Stat., provides:

'Every person who, with intent to commit some crime therein shall, under circumstances not amounting to burglary in the first degree, enter the dwelling house of another or break and enter, or, having committed a crime therein, shall break out of, any building or part thereof, or a room or other structure wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years.'

The gist of the offense charged, as was said in the case of State v. Beeman, 51 Wash. 557, 99 P. 756, wherein it was shown that a house was broken into and property taken, is a breaking and entering with intent to commit a crime therein. So is the information in this case; and in the court's instructions the jury were told that if they found beyond a reasonable doubt that the defendants did break and enter the storeroom, and that such breaking and entering was made with intent to commit some crime therein, then they should find the defendants guilty; otherwise, find them not guilty.

The only pretense of evidence on this point is a question to one of the owners of the building and his answer thereto, that were objected to on behalf of the appellants, as follows: 'Q. Was your place burglarized? Ans. Yes.' To which counsel for appellants objected and moved that it be stricken as a conclusion of law and stating that it is for the state to prove the facts and not conclusions of law. The objection and motion were denied. Because of an intervening question and answer as to 'how many kinds of tires were removed in that burglary,' counsel for the state contend that the objection and motion related to the intervening question and answer. Let us be fair about the controversy. It appears to be a case of a possible rapid fire of questions and answers that withal does not disturb or confuse the real meaning and purpose of the objection. It is a useless thing to argue that the objection and motion to strike related to the intervening question and answer of the number of kinds of tires taken as calling for a conclusion, or that the objection and motion to strike related to any other question and answer than that of the question, 'Was your place burglarized?' and the answer 'Yes.' It is perfectly clear that the court so understood it in making the adverse ruling.

Section 2057 of Rem. Comp. Stat. provides that the indictment or information must be direct and certain as it regards the particular circumstances of the crime charged. The information here is faithful to that rule, for it says the appellants did break and enter, and these allegations must be sustained by the proof. To say a place or establishment (as called by the witness) was burglarized is not the equivalent of saying it was broken and entered. Whatever may have been the limited meaning of the word at common law it has many meanings under our statute. By sections 2578 and 2579, Rem. Comp. Stat. 'burglary' is divided into first and second degrees. By the first section it is provided that every person who with intent to commit a crime therein shall enter in the nighttime the dwelling house of another, wherein there is a human being, (1) being armed with a dangerous weapon, or (2) arming himself therein with such weapon, or (3) being assisted by a confederate actually present, or (4) who while engaged in effecting such entrance or committing any crime therein or in escaping therefrom, assaults any person, or (5) any person whom with intent to commit some crime therein shall break and enter any bank, post office, railway express or railway mail car, shall be guilty of burglary in the first degree. The other section, 2579, already set out hereinbefore, defines 'burglary in the second degree' and the different ways it may be committed, such as enter, break and enter, or break out under circumstances mentioned. Thus, considering both the character of acts and the kinds of places or establishments covered by the statutes, there are dozens of way of committing burglary, and the question arises: What did the witness mean when he testified that his place had been burglarized? It must be by way of mere conjecture, rather than evidence, to allow the jury to find that there was any breaking and entering into the storeroom referred to, as alleged, with directness and certainty in the information, and, as the court instructed the jury, must be found beyond reasonable doubt in order to convict.

Again for a witness to state that his place was burglarized is to give only an opinion or conclusion. The situation is similar to that in the case of ...